Military and policeMain articles: Police and MilitaryOfficers of the South African Police Service in Johannesburg, 2010
While military organisations have existed as long as government itself, the idea of a standing police force is a relatively modern concept. For example, Medieval England's system of travelling criminal courts, or assizes, used show trials and public executions to instill communities with fear to maintain control.[126] The first modern police were probably those in 17th-century Paris, in the court of Louis XIV,[127] although the Paris Prefecture of Police claim they were the world's first uniformed policemen.[128]
Max Weber famously argued that the state is that which controls the monopoly on the legitimate use of force.[129][130] The military and police carry out enforcement at the request of the government or the courts. The term failed state refers to states that cannot implement or enforce policies; their police and military no longer control security and order and society moves into anarchy, the absence of government.[e]
BureaucracyMain article: BureaucracyThe mandarins were powerful bureaucrats in imperial China (photograph shows a Qing dynasty official with mandarin square visible).
The etymology of bureaucracy derives from the French word for office (bureau) and the Ancient Greek for word power (kratos).[131][better source needed] Like the military and police, a legal system's government servants and bodies that make up its bureaucracy carry out the directives of the executive. One of the earliest references to the concept was made by Baron de Grimm, a German author who lived in France. In 1765, he wrote:
The real spirit of the laws in France is that bureaucracy of which the late Monsieur de Gournay used to complain so greatly; here the offices, clerks, secretaries, inspectors and intendants are not appointed to benefit the public interest, indeed the public interest appears to have been established so that offices might exist.[132]
Cynicism over "officialdom" is still common, and the workings of public servants is typically contrasted to private enterprise motivated by profit.[133] In fact private companies, especially large ones, also have bureaucracies.[134] Negative perceptions of "red tape" aside, public services such as schooling, health care, policing or public transport are considered a crucial state function making public bureaucratic action the locus of government power.[134]
Writing in the early 20th century, Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support.[135] Weber wrote that the typical characteristics of modern bureaucracy are that officials define its mission, the scope of work is bound by rules, and management is composed of career experts who manage top down, communicating through writing and binding public servants' discretion with rules.[136]
Legal professionMain article: Legal professionJudges presiding over the Nuremberg trials at the Palace of Justice in Nuremberg, Allied-occupied Germany, 1946
A corollary of the rule of law is the existence of a legal profession sufficiently autonomous to invoke the authority of the independent judiciary; the right to assistance of a barrister in a court proceeding emanates from this corollary—in England the function of barrister or advocate is distinguished from legal counselor.[137] As the European Court of Human Rights has stated, the law should be adequately accessible to everyone and people should be able to foresee how the law affects them.[138]
In order to maintain professionalism, the practice of law is typically overseen by either a government or independent regulating body such as a bar association, bar council or law society. Modern lawyers achieve distinct professional identity through specified legal procedures (e.g. successfully passing a qualifying examination), are required by law to have a special qualification (a legal education earning the student a Bachelor of Laws, a Bachelor of Civil Law, or a Juris Doctor degree. Higher academic degrees may also be pursued. Examples include a Master of Laws, a Master of Legal Studies, a Bar Professional Training Course or a Doctor of Laws.), and are constituted in office by legal forms of appointment (being admitted to the bar). There are few titles of respect to signify famous lawyers, such as Esquire, to indicate barristers of greater dignity,[139][140] and Doctor of law, to indicate a person who obtained a PhD in Law.
Many Muslim countries have developed similar rules about legal education and the legal profession, but some still allow lawyers with training in traditional Islamic law to practice law before personal status law courts.[141] In China and other developing countries there are not sufficient professionally trained people to staff the existing judicial systems, and, accordingly, formal standards are more relaxed.[142]
Once accredited, a lawyer will often work in a law firm, in a chambers as a sole practitioner, in a government post or in a private corporation as an internal counsel. In addition a lawyer may become a legal researcher who provides on-demand legal research through a library, a commercial service or freelance work. Many people trained in law put their skills to use outside the legal field entirely.[143]
Significant to the practice of law in the common law tradition is the legal research to determine the current state of the law. This usually entails exploring case-law reports, legal periodicals and legislation. Law practice also involves drafting documents such as court pleadings, persuasive briefs, contracts, or wills and trusts. Negotiation and dispute resolution skills (including ADR techniques) are also important to legal practice, depending on the field.[143]
Civil societyMain article: Civil societyA march in Washington, D.C. during the American civil rights movement in 1963
The Classical republican concept of "civil society" dates back to Hobbes and Locke.[144] Locke saw civil society as people who have "a common established law and judicature to appeal to, with authority to decide controversies between them."[145] German philosopher Georg Wilhelm Friedrich Hegel distinguished the "state" from "civil society" (German: bürgerliche Gesellschaft) in Elements of the Philosophy of Right.[146][147]
Hegel believed that civil society and the state were polar opposites, within the scheme of his dialectic theory of history. The modern dipole state–civil society was reproduced in the theories of Alexis de Tocqueville and Karl Marx.[148][149] In post-modern theory, civil society is necessarily a source of law, by being the basis from which people form opinions and lobby for what they believe law should be. As Australian barrister and author Geoffrey Robertson QC wrote of international law, "one of its primary modern sources is found in the responses of ordinary men and women, and of the non-governmental organizations which many of them support, to the human rights abuses they see on the television screen in their living rooms."[150]
Freedom of speech, freedom of association and many other individual rights allow people to gather, discuss, criticise and hold to account their governments, from which the basis of a deliberative democracy is formed. The more people are involved with, concerned by and capable of changing how political power is exercised over their lives, the more acceptable and legitimate the law becomes to the people. The most familiar institutions of civil society include economic markets, profit-oriented firms, families, trade unions, hospitals, universities, schools, charities, debating clubs, non-governmental organisations, neighbourhoods, churches, and religious associations. There is no clear legal definition of the civil society, and of the institutions it includes. Most of the institutions and bodies who try to give a list of institutions (such as the European Economic and Social Committee) exclude the political parties.[151][152][153]
Areas of lawSee also: List of areas of law
All legal systems deal with the same basic issues, but jurisdictions categorise and identify their legal topics in different ways. A common distinction is that between "public law" (a term related closely to the state, and including constitutional, administrative and criminal law), and "private law" (which covers contract, tort and property).[f] In civil law systems, contract and tort fall under a general law of obligations, while trusts law is dealt with under statutory regimes or international conventions. International, constitutional and administrative law, criminal law, contract, tort, property law and trusts are regarded as the "traditional core subjects",[g] although there are many further disciplines.
International lawFurther information: Sources of international lawSee also: Conflict of laws, European Union law, and Public international lawWikisource has original text related to this article:Consolidated version of the Treaty on European UnionConsolidated version of the Treaty on the Functioning of the European UnionThis section is an excerpt from International law.[edit]Bound volumes of the American Journal of International Law at the University of Münster in Germany
International law, also known as public international law and the law of nations, is the set of rules, norms, legal customs and standards that states and other actors feel an obligation to, and generally do, obey in their mutual relations. In international relations, actors are simply the individuals and collective entities, such as states, international organizations, and non-state groups, which can make behavioral choices, whether lawful or unlawful. Rules are formal, typically written expectations that outline required behavior, while norms are informal, often unwritten guidelines about appropriate behavior that are shaped by custom and social practice.[154] It establishes norms for states across a broad range of domains, including war and diplomacy, economic relations, and human rights.
International law differs from state-based domestic legal systems in that it operates largely through consent, since there is no universally accepted authority to enforce it upon sovereign states. States and non-state actors may choose to not abide by international law, and even to breach a treaty, but such violations, particularly of peremptory norms, can be met with disapproval by others and in some cases coercive action including diplomacy, economic sanctions, and war. The lack of a final authority in international law can also cause far reaching differences. This is partly the effect of states being able to interpret international law in a manner which they seem fit. This can lead to problematic stances which can have large local effects.[155]Constitutional and administrative lawMain articles: Administrative law and Constitutional lawThe 1789 French Declaration of the Rights of Man and of the Citizen
Constitutional and administrative law govern the affairs of the state. Constitutional law concerns both the relationships between the executive, legislature and judiciary and the human rights or civil liberties of individuals against the state. Most jurisdictions, like the United States and France, have a single codified constitution with a bill of rights. A few, like the United Kingdom, have no such document. A "constitution" is simply those laws which constitute the body politic, from statute, case law and convention.
The fundamental constitutional principle, inspired by John Locke, holds that the individual can do anything except that which is forbidden by law, and the state may do nothing except that which is authorised by law.[156][157] Administrative law is the chief method for people to hold state bodies to account. People (wheresoever allowed) may potentially have prerogative to legally challenge (or sue) an agency, local council, public service, or government ministry for judicial review of the offending edict (law, ordinance, policy order). Such challenge vets the ability of actionable authority under the law, and that the government entity observed required procedure. The first specialist administrative court was the Conseil d'État set up in 1799, as Napoleon assumed power in France.[158]
A sub-discipline of constitutional law is election law. It along with Elections commissions, councils, or committees deal with policy and procedures facilitating elections. These rules settle disputes or enable the translation of the will of the people into functioning democracies. Election law addresses issues who is entitled to vote, voter registration, ballot access, campaign finance and party funding, redistricting, apportionment, electronic voting and voting machines, accessibility of elections, election systems and formulas, vote counting, election disputes, referendums, and issues such as electoral fraud and electoral silence.
Criminal lawMain article: Criminal law
Criminal law, also known as penal law, pertains to crimes and punishment.[159] It thus regulates the definition of and penalties for offences found to have a sufficiently deleterious social impact but, in itself, makes no moral judgment on an offender nor imposes restrictions on society that physically prevent people from committing a crime in the first place.[160][161] Investigating, apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure.[162] The paradigm case of a crime lies in the proof, beyond reasonable doubt, that a person is guilty of two things. First, the accused must commit an act which is deemed by society to be criminal, or actus reus (guilty act).[163] Second, the accused must have the requisite malicious intent to do a criminal act, or mens rea (guilty mind). However, for so called "strict liability" crimes, an actus reus is enough.[164] Criminal systems of the civil law tradition distinguish between intention in the broad sense (dolus directus and dolus eventualis), and negligence. Negligence does not carry criminal responsibility unless a particular crime provides for its punishment.[165][166]
Adolf Eichmann (standing in glass booth at left) being sentenced to death at the conclusion of his 1961 trial, an example of a criminal law proceeding
Examples of crimes include murder, assault, fraud and theft. In exceptional circumstances defences can apply to specific acts, such as killing in self defence, or pleading insanity. Another example is in the 19th-century English case of R v Dudley and Stephens, which tested whether a defence of "necessity" could justify murder and cannibalism to survive a shipwreck.[167]
Criminal law offences are viewed as offences against not just individual victims, but the community as well.[160][161] The state, usually with the help of police, takes the lead in prosecution, which is why in common law countries cases are cited as "The People v ..." or "R (for Rex or Regina) v ...". Also, lay juries are often used to determine the guilt of defendants on points of fact: juries cannot change legal rules. Some developed countries still condone capital punishment for criminal activity, but the normal punishment for a crime will be imprisonment, fines, state supervision (such as probation), or community service. Modern criminal law has been affected considerably by the social sciences, especially with respect to sentencing, legal research, legislation, and rehabilitation.[168] On the international field, 111 countries are members of the International Criminal Court, which was established to try people for crimes against humanity.[169]
Contract lawMain article: ContractThe famous Carbolic Smoke Ball advertisement to cure influenza was held to be a unilateral contract.
Contract law concerns enforceable promises, and can be summed up in the Latin phrase pacta sunt servanda (agreements must be kept).[170] In common law jurisdictions, three key elements to the creation of a contract are necessary: offer and acceptance, consideration and the intention to create legal relations.
Consideration indicates the fact that all parties to a contract have exchanged something of value. Some common law systems, including Australia, are moving away from the idea of consideration as a requirement. The idea of estoppel or culpa in contrahendo, can be used to create obligations during pre-contractual negotiations.[171]
Civil law jurisdictions treat contracts differently in a number of respects, with a more interventionist role for the state in both the formation and enforcement of contracts.[172] Compared to common law jurisdictions, civil law systems incorporate more mandatory terms into contracts, allow greater latitude for courts to interpret and revise contract terms and impose a stronger duty of good faith, but are also more likely to enforce penalty clauses and specific performance of contracts.[172] They also do not require consideration for a contract to be binding.[173] In France, an ordinary contract is said to form simply on the basis of a "meeting of the minds" or a "concurrence of wills". Germany has a special approach to contracts, which ties into property law. Their 'abstraction principle' (Abstraktionsprinzip) means that the personal obligation of contract forms separately from the title of property being conferred. When contracts are invalidated for some reason (e.g. a car buyer is so drunk that he lacks legal capacity to contract)[174] the contractual obligation to pay can be invalidated separately from the proprietary title of the car. Unjust enrichment law, rather than contract law, is then used to restore title to the rightful owner.[175]
Torts and delictsMain articles: Delict and Tort
Certain civil wrongs are grouped together as torts under common law systems and delicts under civil law systems.[176] To have acted tortiously, one must have breached a duty to another person, or infringed some pre-existing legal right. A simple example might be unintentionally hitting someone with a ball.[177] Under the law of negligence, the most common form of tort, the injured party could potentially claim compensation for their injuries from the party responsible. The principles of negligence are illustrated by Donoghue v Stevenson.[h] A friend of Donoghue ordered an opaque bottle of ginger beer (intended for the consumption of Donoghue) in a café in Paisley. Having consumed half of it, Donoghue poured the remainder into a tumbler. The decomposing remains of a snail floated out. She claimed to have suffered from shock, fell ill with gastroenteritis and sued the manufacturer for carelessly allowing the drink to be contaminated. The House of Lords decided that the manufacturer was liable for Mrs Donoghue's illness. Lord Atkin took a distinctly moral approach and said:
The liability for negligence [...] is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. [...] The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.[178]
This became the basis for the four principles of negligence, namely that:
Stevenson owed Donoghue a duty of care to provide safe drinks;he breached his duty of care;the harm would not have occurred but for his breach; andhis act was the proximate cause of her harm.[h]
Another example of tort might be a neighbour making excessively loud noises with machinery on his property.[179] Under a nuisance claim the noise could be stopped. Torts can also involve intentional acts such as assault, battery or trespass. A better known tort is defamation, which occurs, for example, when a newspaper makes unsupportable allegations that damage a politician's reputation.[180] More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes,[181] when statute does not provide immunity.[i]
Property lawMain article: Property lawThe South Sea Bubble by Edward Matthew Ward. The South Sea Bubble in 1720, one of the world's first ever speculations and crashes, led to strict regulation on share trading.[182]
Property law governs ownership and possession. Real property, sometimes called 'real estate', refers to ownership of land and things attached to it.[183] Personal property, refers to everything else; movable objects, such as computers, cars, jewelry or intangible rights, such as stocks and shares. A right in rem is a right to a specific piece of property, contrasting to a right in personam which allows compensation for a loss, but not a particular thing back. Land law forms the basis for most kinds of property law, and is the most complex. It concerns mortgages, rental agreements, licences, covenants, easements and the statutory systems for land registration. Regulations on the use of personal property fall under intellectual property, company law, trusts and commercial law.
A representative example of property law is the 1722 suit of Armory v Delamirie, applying English law.[184] A child was deprived of possession of the gemstones that had been set in piece of jewellery, by the businessperson entrusted to appraise the piece. The court articulated that, according to the view of property in common law jurisdictions, the person who can show the best claim to a piece of property, against any contesting party, is the owner.[185] By contrast, the classic civil law approach to property, propounded by Friedrich Carl von Savigny, is that it is a right good against the world. Obligations, like contracts and torts, are conceptualised as rights good between individuals.[186] The idea of property raises many further philosophical and political issues. Locke argued that our "lives, liberties and estates" are our property because we own our bodies and mix our labour with our surroundings.[187]
TrustsMain article: Trust law
In historical English law, the common law did not permit dividing the ownership from the control of one piece of property—but the law of equity did recognize this through an arrangement known as a trust. Trustees control property whereas the beneficial, or equitable, ownership of trust property is held by people known as beneficiaries. Trustees owe duties to their beneficiaries to take good care of the entrusted property.[188] Another example of a trustee's duty might be to invest property wisely or sell it.[189] This is especially the case for pension funds, the most important form of trust, where investors are trustees for people's savings until retirement. But trusts can also be set up for charitable purposes.
Some international norms for the structure and regulation of trusts are set out in the Hague Trust Convention of 1985.
Intersection with other fieldsEconomicsMain article: Law and economics
In the 18th century, Adam Smith presented a philosophical foundation for explaining the relationship between law and economics.[j] The discipline arose partly out of a critique of trade unions and U.S. antitrust law.[citation needed]
The most prominent economic analyst of law[citation needed] is Ronald Coase, whose first major article, The Nature of the Firm (1937), argued that the reason for the existence of firms (companies, partnerships, etc.) is the existence of transaction costs.[190] Rational individuals trade through bilateral contracts on open markets until the costs of transactions mean that using corporations to produce things is more cost-effective. His second major article, The Problem of Social Cost (1960), argued that if we lived in a world without transaction costs, people would bargain with one another to create the same allocation of resources, regardless of the way a court might rule in property disputes. He contended that law ought to be pre-emptive, and be guided by the most efficient solution.[191]
Many members of the so-called Chicago School are generally advocates of deregulation and privatisation, and are hostile to state regulation or what they see as restrictions on the operation of free markets.[192]
SociologyMain article: Sociology of law
The sociology of law examines the interaction of law with society and overlaps with jurisprudence, philosophy of law, social theory and more specialised subjects such as criminology.[193][194] It is a transdisciplinary and multidisciplinary study focused on the theorisation and empirical study of legal practices and experiences as social phenomena. The institutions of social construction, social norms, dispute processing and legal culture are key areas for inquiry in this knowledge field. In the United States, the field is usually called law and society studies; in Europe, it is more often referred to as socio-legal studies. At first, jurists and legal philosophers were suspicious of sociology of law. Kelsen attacked one of its founders, Eugen Ehrlich, who sought to make clear the differences and connections between positive law, which lawyers learn and apply, and other forms of 'law' or social norms that regulate everyday life, generally preventing conflicts from reaching lawyers and courts.[195] Contemporary research in the sociology of law is concerned with the way that law develops outside discrete state jurisdictions, being produced through social interaction in social arenas, and acquiring a diversity of sources of authority in national and transnational communal networks.[196]
Max Weber, who began his career as a lawyer, and is regarded as one of the founders of sociology and sociology of law
Around 1900, Max Weber defined his "scientific" approach to law, identifying the "legal rational form" as a type of domination, not attributable to personal authority but to the authority of abstract norms.[197] Formal legal rationality was his term for the key characteristic of the kind of coherent and calculable law that was a precondition for modern political developments and the modern bureaucratic state. Weber saw this law as having developed in parallel with the growth of capitalism.[193][194] Another sociologist, Émile Durkheim, wrote in his classic work The Division of Labour in Society that as society becomes more complex, the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions.[198][199] Other notable early legal sociologists included Hugo Sinzheimer, Theodor Geiger, Georges Gurvitch and Leon Petrażycki in Europe, and William Graham Sumner in the U.S.[200][201]
See alsoLaw portalLibrary resources about
LawResources in your libraryResources in other librariesBy-lawJusticeLaw dictionaryLegal research in the United StatesLegal treatiseOutline of lawPolitical sciencePseudolawPublic interest lawSocial lawSources of lawTranslating "law" to other European languagesNotes^ As a legal system, Roman law has affected the development of law worldwide. It also forms the basis for the law codes of most countries of continental Europe and has played an important role in the creation of the idea of a common European culture (Stein, Roman Law in European History, 2, 104–107).^ Civil law jurisdictions recognise custom as "the other source of law"; hence, scholars tend to divide the civil law into the broad categories of "written law" (ius scriptum) or legislation, and "unwritten law" (ius non-scriptum) or custom. Yet they tend to dismiss custom as being of slight importance compared to legislation (Georgiadis, General Principles of Civil Law, 19; Washofsky, Taking Precedent Seriously, 7).^ «In one of his elaborate orations in the United States Senate Mr. Charles Sumner spoke of "the generous presumption of the common law in favor of the innocence of an accused person;" yet it must be admitted that such a presumption cannot be found in Anglo-Saxon law, where sometimes the presumption seems to have been the other way. And in a very recent case in the Supreme Court of the United States, the case of Coffin, 156 U. S. 432, it is pointed out that this presumption was fully established in the Roman law, and was preserved in the canon law.»[105]^ About "cabinet accountability" in both presidential and parliamentary systems, see Shugart–Haggard, Presidential Systems, 67 etc.^ In these cases sovereignty is eroded, and often warlords acquire excessive powers (Fukuyama, State-Building, 166–167).^ Although many scholars argue that "the boundaries between public and private law are becoming blurred", and that this distinction has become mere "folklore" (Bergkamp, Liability and Environment, 1–2).^ E.g. in England these seven subjects, with EU law substituted for international law, make up a "qualifying law degree". For criticism, see Peter Birks' poignant comments attached to a previous version of the Notice to Law Schools Archived 20 June 2009 at the Wayback Machine.^ Jump up to:a b Donoghue v Stevenson ([1932] A.C. 532, 1932 S.C. (H.L.) 31, [1932] All ER Rep 1). 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