Lady Justice or Justitia is a personification of the moral force that underlies the legal system. Her blindfold symbolizes equality under the law through impartiality towards its subjects, the weighing scales represent the balancing of people's interests under the law, and her sword denotes the law's force of reason and the power of the sovereign to enforce the law.
Law[1] is a system of social rules usually enforced through a set of structured institutions.[2] Law affects everyday life and society in a variety of ways. Contract law regulates everything from buying a bus ticket to trading swaptions on a derivatives market. Property law defines rights and obligations related to buying, selling, or renting real property such as homes and buildings. Trust law applies to assets held for investment, such as pension funds. Tort law allows claims for compensation when someone or their property is affected in such a way that harm or injury is caused. If the harm is criminalised in a penal code, criminal law offers means by which the state prosecutes and punishes the perpetrator. Constitutional law provides a framework for creating laws, protecting people's human rights, and electing political representatives. administrative law relates to the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. International law regulates affairs between sovereign nation-states in everything from trade to the environment to military action. "The rule of law", wrote the ancient Greek philosopher Aristotle in 350 BCE, "is better than the rule of any individual."[3]
Legal systems around the world elaborate legal rights and responsibilities in different ways. Laws and legal systems reflect the society and culture out of which they arise. A basic distinction is made between civil law jurisdictions and systems using common law. Some countries base their law on religious texts, while in others traditional customary law or Socialist legal theory are strong influences. Scholars investigate the nature of law through many perspectives, including legal history and philosophy, or social sciences such as economics and sociology. The study of law raises important questions about equality, fairness and justice, which are not always simple. "In its majestic equality", said the author Anatole France in 1894, "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread."[4] The most important institutions for law are the judiciary, the legislature, the executive, its bureaucracy, the military and police, the legal profession and civil society.
Legal subjects
Though all legal systems deal usually with the same or similar issues, different countries often categorise and name legal subjects in different ways. Quite common is the distinction between "public law" subjects, which relate closely to the state (including constitutional, administrative and criminal law), and "private law" subjects (including contract, tort, property).[5] In civil law systems, contract and tort fall under a general law of obligations and 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",[6] although there are many further disciplines which might be of greater practical importance.
International law
-
- Public international law concerns relationships between sovereign nations. It has a special status as law because there is no international police force, and courts lack the capacity to penalise disobedience.[7] The sources for public international law to develop are custom, practice and treaties between sovereign nations. The United Nations, founded under the UN Charter, is an important international organisation, established after the Treaty of Versailles's failure and World War II. Other international agreements, like the Geneva Conventions on the conduct of war, and international bodies such as the International Court of Justice, International Labour Organisation, the World Trade Organisation, or the International Monetary Fund, also form a growing part of public international law.
- Conflict of laws (or "private international law" in civil law countries) concerns which jurisdiction a legal dispute between private parties should be heard in and which jurisdiction's law should be applied. Today, businesses are increasingly capable of shifting capital and labour supply chains across borders, as well as trading with overseas businesses. This increases the number of disputes outside a unified legal framework and the enforceability of standard practices. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958.
- European Union law is the first and thus far only example of a supranational legal framework. However, given increasing global economic integration, many regional agreements—especially the Union of South American Nations—are on track to follow the same model. In the EU, sovereign nations have pooled their authority through a system of courts and political institutions. They have the ability to enforce legal norms against and for member states and citizens, in a way that public international law does not.[8] As the European Court of Justice said in 1962, European Union law constitutes "a new legal order of international law" for the mutual social and economic benefit of the member states.[9]
Constitutional and administrative law
-
- Labour law is the study of a tripartite industrial relationship between worker, employer and trade union. This involves collective bargaining regulation, and the right to strike. Individual employment law refers to workplace rights, such as health and safety or a minimum wage.
- Human rights, civil rights and human rights law are important fields to guarantee everyone basic freedoms and entitlements. These are laid down in codes such as the Universal Declaration of Human Rights, the European Convention on Human Rights and the U.S. Bill of Rights.
- Civil procedure and criminal procedure concern the rules that courts must follow as a trial and appeals proceed. Both concern everybody's right to a fair trial or hearing.
- Evidence law involves which materials are admissible in courts for a case to be built.
- Immigration law and nationality law concern the rights of foreigners to live and work in a nation-state that is not their own and to acquire or lose citizenship. Both also involve the right of asylum and the problem of stateless individuals.
- Social security law refers to the rights people have to social insurance, such as jobseekers' allowances or housing benefits.
- Family law covers marriage and divorce proceedings, the rights of children and rights to property and money in the event of separation.
- Law and commerce
- Commercial law covers complex contract and property law. The law of agency, insurance law, bills of exchange, insolvency and bankruptcy law and sales law are all important, and trace back to the mediæval Lex Mercatoria. The UK Sale of Goods Acts and the U.S. Uniform Commercial Code are examples of codified common law commercial principles.
- Company law sprung from the law of trusts, on the principle of separating ownership of property and control.[44] The law of the modern company began with the Joint Stock Companies Act, passed in the United Kingdom in 1865, which protected investors with limited liability and conferred separate legal personality.
- Intellectual property deals with patents, trademarks and copyrights. These are intangible assets: the right to protect your invention from imitation, your brand name from appropriation, or a song you wrote from performance and plagiarism.
- Restitution deals with the recovery of someone else's gain, rather than compensation for one's own loss.
- Unjust enrichment is law covering a right to retrieve property from someone that has profited unjustly at another's expense.
- Law and regulation
- Tax law involves regulations that concern value added tax, corporate tax, income tax.
- Banking law and financial regulation set minimum standards on the amounts of capital banks must hold, and rules about best practice for investment. This is to insure against the risk of economic crises, such as the Wall Street Crash of 1929.
- Regulated industries are attached to an important body of law, for instance water law, for the provision of public services. Especially since privatisation became popular, private companies doing the jobs previously controlled by government have been bound by social responsibilities. Energy, gas telecomms and water are regulated industries in most OECD countries.
- Competition law, known in the U.S. as antitrust law, is an evolving field that traces as far back as Roman decrees against price fixing and the English restraint of trade doctrine. Modern competition law derives from the U.S. anti-cartel and anti-monopoly statutes (the Sherman Act and Clayton Act) of the turn of the 20th century. It is used to control businesses who attempt to use their economic influence to distort market prices at the expense of consumer welfare.
- Consumer law could include anything from regulations on unfair contractual terms and clauses to directives on airline baggage insurance.
- Environmental law is increasingly important, especially in light of the Kyoto Protocol and the potential danger of climate change. Environmental protection also serves to penalise polluters within domestic legal systems.
Legal systems
-
- Landmark decision
- List of areas of law
- Lists of case law
- List of jurists
- List of legal abbreviations
Notes
- ^ From Old English lagu "something laid down or fixed"; legal comes from Latin legalis, from lex "law", "statute" (Law, Online Etymology Dictionary; Legal, Mirriam-Webster's Online Dictionary)
- ^ Robertson, Crimes against humanity, 90; see jurisprudence for extensive debate on what law is; H.L.A Hart argued law is a "system of rules" in his work The Concept of Law (Campbell, The Contribution of Legal Studies, 184); John Austin said law was "the command of a sovereign, backed by the threat of a sanction" (Bix, John Austin); Ronald Dworkin describes law as an "interpretive concept" to achieve justice (Dworkin, Law's Empire, 410); and Joseph Raz argues law is an "authority" to mediate people's interests (Raz, The Authority of Law, 3–36).
- ^ n.b. this translation reads, "it is more proper that law should govern than any one of the citizens" (Aristotle, Politics 3.16).
- ^ The original French is: "la loi, dans un grand souci d'égalité, interdit aux riches comme aux pauvres de coucher sous les ponts, de mendier dans les rues et de voler du pain" (France, The Red Lilly, Chapter VII).
- ^ Although some scholars argue that "the boundaries between public and private law are becoming blurres," and that this distinction has become mere "folklore" (Bergkamp, Liability and Environment, 1–2).
- ^ e.g. in England these seven subjects, except with EU law instead of international law, are required knowledge for legal practice. Outside the EU, students may focus on other regional organisations, such as NAFTA, SAFTA, CSN, ASEAN or the African Union
- ^ The prevailing manner of enforcing international law is still essentially "self help"; that is the reaction by states to alleged breaches of international obligations by other states (Robertson, Crimes against Humanity, 90; Shermers-Blokker, International Institutional Law, 900–901).
- ^ Shermers-Blokker, International Institutional Law, 943
- ^ C-26/62 Van Gend en Loos v. Nederlanse Administratie Der Belastingen, Eur-Lex
- ^ Entick v. Carrington (1765) 19 Howell's State Trials 1030
- ^ Locke, The Second Treatise, Chapter 9, section 124
- ^ Auby, Administrative Law in France, 75
- ^ a b c "Criminal law". Encyclopaedia Britannica.
- ^ "Procedural law". Encyclopaedia Britannica.
- ^ Robinson v. California, 370 U.S. 660 (1962).
- ^ Powell v. Texas, 392 U.S. 514 (1968).
- ^ Regina v. Dudley and Stephens ([1884] 14 QBD 273 DC)
- ^ The States Parties to the Rome Statute, International Criminal Court
- ^ Wenberg, Pacta Sunt Servanda, 775
- ^ e.g. In England, s.52 Law of Property Act 1925
- ^ [1893] QB 256
- ^ a b Carlill v. Carbolic Smoke Ball Company [1893] 1 QB 256. See a full law report from Justis.
- ^ Austotel v. Franklins (1989) 16 NSWLR 582
- ^ e.g. In Germany, § 311 Abs. II BGB
- ^ § 105 Abs. II BGB
- ^ Smith, The Structure of Unjust Enrichment Law, 1037
- ^ Bolton v. Stone [1951] A.C. 850
- ^ a b Donoghue v. Stevenson ([1932] A.C. 532, 1932 S.C. (H.L.) 31, [1932] All ER Rep 1). See the original text of the case in UK Law Online.
- ^ Donoghue v. Stevenson [1932] A.C. 532, 580
- ^ Sturges v. Bridgman (1879) 11 Ch D 852
- ^ e.g. concerning a British politician and the Iraq War, Galloway v. Telegraph Group Ltd [2004] EWHC 2786
- ^ Taff Vale Railway Co. v. Amalgamated Society of Railway Servants [1901] AC 426
- ^ In the UK, Trade Union and Labour Relations (Consolidation) Act 1992; c.f. in the U.S., National Labor Relations Act
- ^ Hunter v. Canary Wharf Ltd. (1997) 2 AllER 426.
- ^ Savigny. Das Recht des Besitzes, 25
- ^ P. Matthews, The Man of Property, 251–274
- ^ Locke, Second Treatise on Civil Government, Chapter 9, section 123.
- ^ Proudhon, What is Property?, Chapter I (Method Pursued in this Book – The Idea of a Revolution)
- ^ McGhee, Snell's Equity, 7
- ^ c.f. Bristol and West Building Society v. Mothew [1998] Ch 1
- ^ Keech v. Sandford (1726) Sel Cas. Ch.61
- ^ Keech v. Sandford (1726) Sel Cas. Ch.61
- ^ Nestle v. National Westminster Bank plc [1993] 1 WLR 1260
- ^ Berle, Modern Corporation and Private Property
- ^ 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).
- ^ Gordley-von Mehren, Comparative Study of Private Law, 18
- ^ Gordley-von Mehren, Comparative Study of Private Law, 21
- ^ Stein, Roman Law in European History, 32
- ^ Stein, Roman Law in European History, 35
- ^ Stein, Roman Law in European History, 43
- ^ Hatzis, The Short-Lived Influence of the Napoleonic Civil Code in Greece, 253–263
* Demirgüç-Kunt -Levine, Financial Structures and Economic Growth, 204
- ^ The World Factbook — Field Listing – Legal system, CIA
- ^ Magna Carta, Fordham University
- ^ Gordley-von Mehren, Comparative Study of Private Law, 4
- ^ Gordley-von Mehren, Comparative Study of Private Law, 3
- ^ Gee v. Pritchard (1818) 2 Swans. 402, 414
- ^ Blackstone, Commentaries on the Laws of England, Book the First – Chapter the First
- ^ Gordley-von Mehren, Comparative Study of Private Law, 17
- ^ Glenn, Legal Traditions of the World, 159
- ^ Anderson, Law Reform in the Middle East, 43
* Giannoulatos, Islam, 274–275
- ^ Hallaq, The Origins and Evolution of Islamic Law, 1
- ^ Théodoridés "law". Encyclopedia of the Archaeology of Ancient Egypt.
* VerSteeg, Law in ancient Egypt
- ^ Glenn, Legal Traditions of the World, 86
- ^ Kelly, A Short History of Western Legal Theory, 5–6
- ^ Ober, The Nature of Athenian Democracy, 121
- ^ Kelly, A Short History of Western Legal Theory, 39
- ^ As a legal system, Roman law has affected the development of law in most of Western civilisation as well as in parts of the Eastern world. It also forms the basis for the law codes of most countries of continental Europe ( "Roman law". Encyclopaedia Britannica. ).
- ^ Sealey-Hooley, Commercial Law, 14
- ^ For discussion of the composition and dating of these sources, see Olivelle, Manu's Code of Law (Oxford, 2005), 18-25.
- ^ Glenn, Legal Traditions of the World, 276
- ^ Glenn, Legal Traditions of the World, 273
- ^ Glenn, Legal Traditions of the World, 287
- ^ Glenn, Legal Traditions of the World, 304
- ^ Glenn, Legal Traditions of the World, 305
- ^ Glenn, Legal Traditions of the World, 307
- ^ Glenn, Legal Traditions of the World, 309
- ^ Farah, Five Years of China WTO Membership, 263–304
- ^ Rousseau, The Social Contract, Book II: Chapter 6 (Law)
- ^ Bix, John Austin
- ^ Kant, Immanuel, Groundwork of the Metaphysics of Morals, 42 (par. 434)
- ^ Green, Legal Positivism
- ^ Kazantzakis, Friedrich Nietzsche and the Philosophy of Law, 97–98
* Linarelli, Nietzsche in Law's Cathedral, 23–26
- ^ Nietzsche, Zur Genealogie der Moral, Second Essay, 11
- ^ Marmor, The Pure Theory of Law
- ^ Bielefeldt, Carl Schmitt's Critique of Liberalism, 25–26
- ^ Finn, Constitutions in Crisis, 170–171
- ^ Bayles, Hart's Legal Philosophy, 21
- ^ Dworkin, Law's Empire, 410
- ^ Raz, The Authority of Law, 3–36
- ^ Raz, The Authority of Law, 37 etc.
- ^ The Becker-Posner Blog. Retrieved on 2007-02-03.
- ^ S.M. Jakoby, Economic Ideas and the Labour Market, 53
- ^ Coase, The Nature of the Firm, 386–405
- ^ Coase, The Problem of Social Coast, 1–44
- ^ Sturges v. Bridgman (1879) 11 Ch D 852
- ^ Coase, The Problem of Social Cost, IV, 7
- ^ Coase, The Problem of Social Cost, V, 9
- ^ Coase, The Problem of Social Cost, VIII, 23
- ^ Jary, Collins Dictionary of Sociology, 636
- ^ Rottleuthner, La Sociologie du Droit en Allemagne, 109
* Rottleuthner, Rechtstheoritische Probleme der Sociologie des Rechts, 521
- ^ Rheinstein, Max Weber on Law and Economy in Society, 336
- ^ Jary, Collins Dictionary of Sociology, 636
- ^ Johnson, The Blackwell Dictionary of Sociology, 156
- ^ Gurvitch, Sociology of Law, 142
* Papachristou, Sociology of Law, 81–82
- ^ Montesquieu, The Spirit of Laws, Book XI: Of the Laws Which Establish Political Liberty, with Regard to the Constitution, Chapters 6–7
- ^ Thomas Hobbes, Leviathan, XVII
- ^ A Brief Overview of the Supreme Court, Supreme Court of the United States
- ^ House of Lords Judgements, House of Lords
- ^ Entscheidungen des Bundesverfassungsgerichts, Bundesverfassungsgericht
* Jurisprudence, publications, documentation, Cour de cassation
- ^ European Court of Justice. Retrieved on 2006-11-10.
- ^ Roe v. Wade (1973) 410 U.S. 113 Retrieved 2007-01-26
- ^ Riker, The Justification of Bicameralism, 101
- ^ Haggard, Presidents, Parliaments and Policy, 71
* Olson, The New Parliaments of Central and Eastern Europe, 7
- ^ Dickens, The Old Curiosity Shop, Chapter 73
- ^ History of Police Forces, History.com Encyclopedia
- ^ Des Sergents de Ville et Gardiens de la Paix à la Police de Proximité, La Préfecture de Police
- ^ Weber, Politics as a Vocation
* Weber, The Theory of Social and Economic Organisation, 154
- ^ Albrow, Bureaucracy, 16
- ^ Mises, Bureaucracy, II, Bureaucratic Management
- ^ a b Kettl, Public Bureaucracies, 367
- ^ Weber, Economy and Society, I, 393
- ^ Kettl, Public Bureaucracies, 371
- ^ The Sunday Times v. The United Kingdom [1979] ECHR 1 at 49 Case no. 6538/74
- ^ Locke, Second Treatise, Chapter 7, section 87
- ^ Hegel, Elements of the Philosophy of Right, 3, II, 182
- ^ Pelczynski, The State and Civil Society, 1–13
- ^ Robertson, Crimes Against Humanity, 98–99
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