Law is, generally, a system of rules which are enforced through social institutions to govern behaviour,[2] although the term law has no universally accepted definition.[3] Laws can be made by legislatures through legislation (resulting in statutes), the executive through decrees and regulations, or judges through binding precedents (normally in common law jurisdictions). Private individuals can create legally binding contracts, including (in some jurisdictions) arbitration agreements that exclude the normal court process. The formation of laws themselves may be influenced by a constitution (written or unwritten) and the rights encoded therein. The law shapes politics, economics, and society in various ways and serves as a mediator of relations between people. A general distinction can be made between civil law jurisdictions (including canon and socialist law), in which the legislature or other central body codifies and consolidates their laws, and common law systems, where judge-made binding precedents are accepted. Historically, religious laws played a significant role even in settling of secular matters, which is still the case in some religious communities, particularly Jewish, and some countries, particularly Islamic. Islamic Sharia law is the worlds most widely used religious law.[4] The adjudication of the law is generally divided into two main areas. Criminal law deals with conduct that is considered harmful to social order and in which the guilty party may be imprisoned or fined. Civil law (not to be confused with civil law jurisdictions above) deals with the resolution of lawsuits (disputes) between individuals or organisations. These resolutions seek to provide a legal remedy (often monetary damages) to the winning litigant. Under civil law, the following specialties, among others, exist: Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law regulates the transfer and title of personal property and real property. Trust law applies to assets held for investment and financial security. Tort law allows claims for compensation if a persons property is harmed. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies. International law governs affairs between sovereign states in activities ranging from trade to military action. To implement and enforce the law and provide services to the public by public servants, a governments bureaucracy, military, and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress[citation needed]. Law provides a rich source of scholarly inquiry into legal history, philosophy, economic analysis and sociology. Law also raises important and complex issues concerning equality, fairness, and justice. There is an old saying that all are equal before the law.. The author Anatole France said in 1894, In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread.[5] Writing in 350 BC, the Greek philosopher Aristotle declared, The rule of law is better than the rule of any individual.[6] Mikhail Bakunin said: All law has for its object to confirm and exalt into a system the exploitation of the workers by a ruling class.[7] Cicero said more law, less justice.[8] Marxist doctrine asserts that law will not be required once the state has withered away.[9] Contents [hide] 1 Definition 1.1 Whether it is possible or desirable to define law 1.2 Proposed definitions 2 Legal subjects 2.1 International law 2.2 Constitutional and administrative law 2.3 Criminal law 2.4 Contract law 2.5 Tort law 2.6 Property law 2.7 Equity and trusts 2.8 Further disciplines 3 Legal systems 3.1 Civil law 3.2 Common law and equity 3.3 Religious law 3.3.1 Sharia law 4 History 5 Legal theory 5.1 Philosophy 5.2 Economic analysis 5.3 Sociology 6 Legal institutions 6.1 Judiciary 6.2 Legislature 6.3 Executive 6.4 Military and police 6.5 Bureaucracy 6.6 Legal profession 6.7 Civil society 7 See also 8 Notes 9 References 10 External links Definition[edit] Main articles: Definition of law and Analytical jurisprudence Whether it is possible or desirable to define law[edit] There have been many attempts to produce a universally acceptable definition of law. By 1972, no such definition had been produced.[3] McCoubrey and White said that the question what is law? has no simple answer.[10] Glanville Williams said that the meaning of the word law depends on the context in which that word is used. He said that, for example, early customary law and municipal law were contexts where the word law had two different and irreconcilable meanings.[11] Thurman Arnold said that it is obvious that it is impossible to define the word law and that it is also equally obvious that the struggle to define that word should not ever be abandoned.[12] It is possible to take the view that there is no need to define the word law (e.g. lets forget about generalities and get down to cases).[13] Proposed definitions[edit] One definition is that law is a system of rules and guidelines which are enforced through social institutions to govern behaviour.[2] In The Concept of Law Hart argued law is a system of rules;[14] Austin said law was the command of a sovereign, backed by the threat of a sanction;[15] Dworkin describes law as an interpretive concept to achieve justice;[16] and Raz argues law is an authority to mediate peoples interests.[17] Holmes said The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.[18] Aquinas said that law is a rational ordering of things which concern the common good that is promulgated by whoever is charged with the care of the community.[19] This definition has both positivist and naturalist elements.[20] Legal subjects[edit] All legal systems deal with the same basic issues, but jurisdictions categorise and identify its legal subjects 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).[21] 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,[22] although there are many further disciplines. International law[edit] Main articles: Public international law, Conflict of laws and European Union law Providing a constitution for public international law, the United Nations system was agreed during World War II. International law can refer to three things: public international law, private international law or conflict of laws and the law of supranational organisations. Public international law concerns relationships between sovereign nations. The sources for public international law development are custom, practice and treaties between sovereign nations, such as the Geneva Conventions. Public international law can be formed by international organisations, such as the United Nations (which was established after the failure of the League of Nations to prevent the Second World War),[23] the International Labour Organisation, the World Trade Organisation, or the International Monetary Fund. Public international law has a special status as law because there is no international police force, and courts (e.g. the International Court of Justice as the primary UN judicial organ) lack the capacity to penalise disobedience.[24] However, a few bodies, such as the WTO, have effective systems of binding arbitration and dispute resolution backed up by trade sanctions.[25] 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 jurisdictions 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, making the question of which country has jurisdiction even more pressing. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958.[26] European Union law is the first and, so far, only example of an internationally accepted legal system other than the UN and the World Trade Organisation. Given the trend of 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 gathered their authority in a system of courts and political institutions. These institutions are allowed the ability to enforce legal norms both against or for member states and citizens in a manner which is not possible through public international law.[27] As the European Court of Justice said in the 1960s, European Union law constitutes a new legal order of international law for the mutual social and economic benefit of the member states.[28] Constitutional and administrative law[edit] Main articles: Constitutional law and Administrative law The 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. A case named Entick v Carrington[29] illustrates a constitutional principle deriving from the common law. Mr Enticks house was searched and ransacked by Sheriff Carrington. When Mr Entick complained in court, Sheriff Carrington argued that a warrant from a Government minister, the Earl of Halifax, was valid authority. However, there was no written statutory provision or court authority. The leading judge, Lord Camden, stated that, The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole ... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.[30] 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.[31][32] Administrative law is the chief method for people to hold state bodies to account. People can apply for judicial review of actions or decisions by local councils, public services or government ministries, to ensure that they comply with the law. The first specialist administrative court was the Conseil dÉtat set up in 1799, as Napoleon assumed power in France.[33] Criminal law[edit] Main article: Criminal law Criminal law, also known as penal law, pertains to crimes and punishment.[34] 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.[35] Investigating, apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure.[36] 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).[37] 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.[38] 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.[39][40] A depiction of a 1600s criminal trial, for witchcraft in Salem 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 a defence of necessity. The Mignonette, sailing from Southampton to Sydney, sank. Three crew members and Richard Parker, a 17-year-old cabin boy, were stranded on a raft. They were starving and the cabin boy was close to death. Driven to extreme hunger, the crew killed and ate the cabin boy. The crew survived and were rescued, but put on trial for murder. They argued it was necessary to kill the cabin boy to preserve their own lives. Lord Coleridge, expressing immense disapproval, ruled, to preserve ones life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. The men were sentenced to hang, but public opinion was overwhelmingly supportive of the crews right to preserve their own lives. In the end, the Crown commuted their sentences to six months in jail.[41] Criminal law offences are viewed as offences against not just individual victims, but the community as well.[35] 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.[42] On the international field, 111 countries are members of the International Criminal Court, which was established to try people for crimes against humanity.[43] Contract law[edit] Main article: Contract The 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).[44] 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. In Carlill v Carbolic Smoke Ball Company a medical firm advertised that its new wonder drug, the smokeball, would cure peoples flu, and if it did not, the buyers would get £100. Many people sued for their £100 when the drug did not work. Fearing bankruptcy, Carbolic argued the advert was not to be taken as a serious, legally binding offer. It was an invitation to treat, mere puffery, a gimmick. But the Court of Appeal held that to a reasonable man Carbolic had made a serious offer, accentuated by their reassuring statement, £1000 is deposited. Equally, people had given good consideration for the offer by going to the distinct inconvenience of using a faulty product. Read the advertisement how you will, and twist it about as you will, said Lord Justice Lindley, here is a distinct promise expressed in language which is perfectly unmistakable.[45] 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.[46] In civil law jurisdictions, consideration is not required for a contract to be binding.[47] 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)[48] 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.[49] Tort law[edit] Main article: Tort The McLibel two were involved in the longest-running case in UK history for publishing a pamphlet criticising McDonalds restaurants. Torts, sometimes called delicts, are civil wrongs. 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 accidentally hitting someone with a cricket ball.[50] 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.[51] A friend of Mrs Donoghue ordered an opaque bottle of ginger beer (intended for the consumption of Mrs Donoghue) in a café in Paisley. Having consumed half of it, Mrs 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 Donoghues 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 lawyers 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.[52] This became the basis for the four principles of negligence: (1) Mr Stevenson owed Mrs Donoghue a duty of care to provide safe drinks (2) he breached his duty of care (3) the harm would not have occurred but for his breach and (4) his act was the proximate cause of her harm.[51] Another example of tort might be a neighbour making excessively loud noises with machinery on his property.[53] 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 politicians reputation.[54] More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes,[55] when statute does not provide immunity.[56] Property law[edit] Main article: Property law A painting of the South Sea Bubble, one of the worlds first ever speculations and crashes, led to strict regulation on share trading.[57] Property law governs ownership and possession. Real property, sometimes called real estate, refers to ownership of land and things attached to it.[58] 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. An example of a basic case of most property law is Armory v Delamirie [1722].[59] A chimney sweeps boy found a jewel encrusted with precious stones. He took it to a goldsmith to have it valued. The goldsmiths apprentice looked at it, sneakily removed the stones, told the boy it was worth three halfpence and that he would buy it. The boy said he would prefer the jewel back, so the apprentice gave it to him, but without the stones. The boy sued the goldsmith for his apprentices attempt to cheat him. Lord Chief Justice Pratt ruled that even though the boy could not be said to own the jewel, he should be considered the rightful keeper (finders keepers) until the original owner is found. In fact the apprentice and the boy both had a right of possession in the jewel (a technical concept, meaning evidence that something could belong to someone), but the boys possessory interest was considered better, because it could be shown to be first in time. Possession may be nine tenths of the law, but not all. This case is used to support the view of property in common law jurisdictions, that the person who can show the best claim to a piece of property, against any contesting party, is the owner.[60] 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.[61] 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.[62] Equity and trusts[edit] Main articles: Equity (law) and Trust law The Court of Chancery, London, early 19th century Equity is a body of rules that developed in England separately from the common law. The common law was administered by judges. The Lord Chancellor on the other hand, as the Kings keeper of conscience, could overrule the judge-made law if he thought it equitable to do so.[63] This meant equity came to operate more through principles than rigid rules. For instance, whereas neither the common law nor civil law systems allow people to split the ownership from the control of one piece of property, equity allows 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.[64] In the early case of Keech v Sandford [1722][65] a child had inherited the lease on a market in Romford, London. Mr Sandford was entrusted to look after this property until the child matured. But before then, the lease expired. The landlord had (apparently) told Mr Sandford that he did not want the child to have the renewed lease. Yet the landlord was happy (apparently) to give Mr Sandford the opportunity of the lease instead. Mr Sandford took it. When the child (now Mr Keech) grew up, he sued Mr Sandford for the profit that he had been making by getting the markets lease. Mr Sandford was meant to be trusted, but he put himself in a position of conflict of interest. The Lord Chancellor, Lord King, agreed and ordered Mr Sandford should disgorge his profits. He wrote, I very well see, if a trustee, on the refusal to renew, might have a lease to himself few trust-estates would be renewed ... This may seem very hard, that the trustee is the only person of all mankind who might not have the lease; but it is very proper that the rule should be strictly pursued and not at all relaxed. Of course, Lord King LC was worried that trustees might exploit opportunities to use trust property for themselves instead of looking after it. Business speculators using trusts had just recently caused a stock market crash. Strict duties for trustees made their way into company law and were applied to directors and chief executive officers. Another example of a trustees duty might be to invest property wisely or sell it.[66] This is especially the case for pension funds, the most important form of trust, where investors are trustees for peoples savings until retirement. But trusts can also be set up for charitable purposes, famous examples being the British Museum or the Rockefeller Foundation. Further disciplines[edit] Law spreads far beyond the core subjects into virtually every area of life. Three categories are presented for convenience, though the subjects intertwine and overlap. Law and society A trade union protest by UNISON while on strike 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 job security, 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 (which founded the European Court of Human Rights) and the U.S. Bill of Rights. The Treaty of Lisbon makes the Charter of Fundamental Rights of the European Union legally binding in all member states except Poland and the United Kingdom.[67] Civil procedure and criminal procedure concern the rules that courts must follow as a trial and appeals proceed. Both concern a citizens 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 Company law sprang from the law of trusts, on the principle of separating ownership of property and control.[68] The law of the modern company began with the Joint Stock Companies Act 1856, passed in the United Kingdom, which provided investors with a simple registration procedure to gain limited liability under the separate legal personality of the corporation. 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 medieval Lex Mercatoria. The UK Sale of Goods Act 1979 and the US Uniform Commercial Code are examples of codified common law commercial principles. Admiralty law and the Law of the Sea lay a basic framework for free trade and commerce across the worlds oceans and seas, where outside of a countrys zone of control. Shipping companies operate through ordinary principles of commercial law, generalised for a global market. Admiralty law also encompasses specialised issues such as salvage, maritime liens, and injuries to passengers. Intellectual property law aims at safeguarding creators and other producers of intellectual goods and services. These are legal rights (copyrights, trademarks, patents, and related rights) which result from intellectual activity in the industrial, literary and artistic fields.[69] Restitution deals with the recovery of someone elses gain, rather than compensation for ones own loss. Unjust enrichment When someone has been unjustly enriched (or there is an absence of basis for a transaction) at anothers expense, this event generates the right to restitution to reverse that gain. Space law is a relatively new field dealing with aspects of international law regarding human activities in Earth orbit and outer space. While at first addressing space relations of countries via treaties, increasingly it is addressing areas such as space commercialisation, property, liability, and other issues. Law and regulation The New York Stock Exchange trading floor after the Wall Street Crash of 1929, before tougher banking regulation was introduced Tax law involves regulations that concern value added tax, corporate tax, and 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. Regulation deals with the provision of public services and utilities. Water law is one example. Especially since privatisation became popular and took management of services away from public law, private companies doing the jobs previously controlled by government have been bound by varying degrees of social responsibility. 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[edit] Main article: Legal systems of the world In general, legal systems can be split between civil law and common law systems.[70] The term civil law referring to a legal system should not be confused with civil law as a group of legal subjects distinct from criminal or public law. A third type of legal system—accepted by some countries without separation of church and state—is religious law, based on scriptures. The specific system that a country is ruled by is often determined by its history, connections with other countries, or its adherence to international standards. The sources that jurisdictions adopt as authoritatively binding are the defining features of any legal system. Yet classification is a matter of form rather than substance, since similar rules often prevail. Civil law[edit] Main article: Civil law (legal system) First page of the 1804 edition of the Napoleonic Code. Civil law is the legal system used in most countries around the world today. In civil law the sources recognised as authoritative are, primarily, legislation—especially codifications in constitutions or statutes passed by government—and custom.[71] Codifications date back millennia, with one early example being the Babylonian Codex Hammurabi. Modern civil law systems essentially derive from the legal practice of the 6th-century Eastern Roman Empire whose texts were rediscovered by late medieval Western Europe. Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class.[72] Instead a lay magistrate, iudex, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised.[73] Each case was to be decided afresh from the laws of the State, which mirrors the (theoretical) unimportance of judges decisions for future cases in civil law systems today. From 529–534 AD the Byzantine Emperor Justinian I codified and consolidated Roman law up until that point, so that what remained was one-twentieth of the mass of legal texts from before.[74] This became known as the Corpus Juris Civilis. As one legal historian wrote, Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before.[75] The Justinian Code remained in force in the East until the fall of the Byzantine Empire. Western Europe, meanwhile, relied on a mix of the Theodosian Code and Germanic customary law until the Justinian Code was rediscovered in the 11th century, and scholars at the University of Bologna used it to interpret their own laws.[76] Civil law codifications based closely on Roman law, alongside some influences from religious laws such as canon law, continued to spread throughout Europe until the Enlightenment; then, in the 19th century, both France, with the Code Civil, and Germany, with the Bürgerliches Gesetzbuch, modernised their legal codes. Both these codes influenced heavily not only the law systems of the countries in continental Europe (e.g. Greece), but also the Japanese and Korean legal traditions.[77][78] Today, countries that have civil law systems range from Russia and China to most of Central and Latin America.[79] With the exception of Louisianas Civil Code, the United States follows the common law system described below. Common law and equity[edit] Main article: Common law King John of England signs Magna Carta Common law and equity are legal systems where decisions by courts are explicitly acknowledged as legal sources. The doctrine of precedent, or stare decisis (Latin for to stand by decisions) means that decisions by higher courts bind lower courts. Common law systems also rely on statutes, passed by the legislature, but may make less of a systematic attempt to codify their laws than in a civil law system. Common law originated from England and has been inherited by almost every country once tied to the British Empire (except Malta, Scotland, the U.S. state of Louisiana, and the Canadian province of Quebec). In medieval England, the Norman conquest led to a unification of various tribal customs and hence a law common to the whole country. The common law developed when the English monarchy had been weakened by the enormous cost of fighting for control over large parts of France. King John had been forced by his barons to sign a document limiting his authority to pass laws. This great charter or Magna Carta of 1215 also required that the Kings entourage of judges hold their courts and judgments at a certain place rather than dispensing autocratic justice in unpredictable places about the country.[80] A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralised. In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five.[81] This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law.[82] As a result, as time went on, increasing numbers of citizens petitioned the King to override the common law, and on the Kings behalf the Lord Chancellor gave judgment to do what was equitable in a case. From the time of Sir Thomas More, the first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery. At first, equity was often criticised as erratic, that it varied according to the length of the Chancellors foot.[83] But over time it developed solid principles, especially under Lord Eldon.[84] In the 19th century the two systems were fused into one another. In developing the common law and equity, academic authors have always played an important part. William Blackstone, from around 1760, was the first scholar to describe and teach it.[85] But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.[86] Religious law[edit] Main article: Religious law Religious law is explicitly based on religious precepts. Examples include the Jewish Halakha and Islamic Sharia—both of which translate as the path to follow—while Christian canon law also survives in some church communities. Often the implication of religion for law is unalterability, because the word of God cannot be amended or legislated against by judges or governments.[citation needed] However a thorough and detailed legal system generally requires human elaboration. For instance, the Quran has some law, and it acts as a source of further law through interpretation,[87] Qiyas (reasoning by analogy), Ijma (consensus) and precedent. This is mainly contained in a body of law and jurisprudence known as Sharia and Fiqh respectively. Another example is the Torah or Old Testament, in the Pentateuch or Five Books of Moses. This contains the basic code of Jewish law, which some Israeli communities choose to use. The Halakha is a code of Jewish law which summarises some of the Talmuds interpretations. Nevertheless, Israeli law allows litigants to use religious laws only if they choose. Canon law is only in use by members of the Catholic Church,[88] the Eastern Orthodox Church and the Anglican Communion. A trial in the Ottoman Empire, 1879, when religious law applied under the Mecelle Sharia law[edit] Until the 18th century, Sharia law was practiced throughout the Muslim world in a non-codified form, with the Ottoman Empires Mecelle code in the 19th century being a first attempt at codifying elements of Sharia law. Since the mid-1940s, efforts have been made, in country after country, to bring Sharia law more into line with modern conditions and conceptions.[89][90] In modern times, the legal systems of many Muslim countries draw upon both civil and common law traditions as well as Islamic law and custom. The constitutions of certain Muslim states, such as Egypt and Afghanistan, recognise Islam as the religion of the state, obliging legislature to adhere to Sharia.[91] Saudi Arabia recognises Quran as its constitution, and is governed on the basis of Islamic law.[92] Iran has also witnessed a reiteration of Islamic law into its legal system after 1979.[93] During the last few decades, one of the fundamental features of the movement of Islamic resurgence has been the call to restore the Sharia, which has generated a vast amount of literature and affected world politics.[94]
Posted on: Wed, 10 Sep 2014 11:56:06 +0000