Law[2] is a system of rules, usually enforced through a set of institutions, [3] used to underpin civil obedience, politics, economics and society in numerous ways. It consists of a number of separate disciplines. Contract law regulates everything from buying a bus ticket to trading swaptions on a derivatives market. Property law defines rights and obligations related to transfer and title of personal and real property, for instance, in mortgaging or renting a home. Trust law applies to assets held for investment and financial security, such as pension funds. Tort law allows claims for compensation when someone or their property is injured or harmed. 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. International law regulates affairs between sovereign nation-states in everything from trade to the environment to military action. Law manifests itself throughout the community in many more ways, and serves as the foremost social mediator of relations between people. Writing in 350 BC, the ancient Greek philosopher Aristotle declared, "The rule of law is better than the rule of any individual."[4]
Legal systems around the world elaborate legal rights and responsibilities in different ways. A basic distinction is made between civil law jurisdictions and systems using common law. Some countries persist in basing their law on religious texts. 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 and complex issues concerning equality, fairness, liberty and justice. "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."[5] The central institutions for interpreting and creating law are the three main branches of government, namely an impartial judiciary, a democratic legislature and an accountable executive. To implement and enforce the law and provide services to the public, a government's bureaucracy, the 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.
Legal subjects
Though all legal systems must deal with 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 and property).[6] 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",[7] although there are many further disciplines which might be of greater practical importance.
[edit] International law
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.
In a global economy, law is globalising too. 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 among sovereign nations. The sources for public international law to develop are custom, practice and treaties between sovereign nations like the Geneva Conventions on the conduct of war. Public international law is also formed by international organisations, such as the United Nations (founded under the UN Charter, and established after the League of Nations failed to prevent the Second World War[8]), 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.[9] However, a few bodies, like the WTO have effective systems of binding arbitration and dispute resolution backed up by trade sanctions.[10]
• 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. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958.[11]
• 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.[12] 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.[13]
[edit] Constitutional and administrative law
Main articles: Constitutional law and Administrative law
The French Declaration of the Rights of Man and of the Citizen, whose principles still have constitutional value.
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[14] illustrates a constitutional principle deriving from the common law. Mr Entick's 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."
The fundamental constitutional principle, inspired by John Locke, is that the individual can do anything but that which is forbidden by law, and the state may do nothing but that which is authorised by law.[15] 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 d'État set up in 1799, as Napoleon assumed power in France.[16]
[edit] Criminal law
Main article: Criminal law
Criminal law is the body of law that defines criminal offences and the penalties for convicted offenders.[17] Apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure.[18] 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).[19] 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, which include cases like dangerous driving, proof of mens rea is not necessary. An actus reus is enough.[20]
A depiction of a 1600s criminal trial, for witchcraft in Salem
Examples of different kinds of crime include murder, assault, fraud or theft. In exceptional circumstances, defences can exist to some crimes, such as killing in self defence, or pleading insanity. Another example is in the 19th century English case of R v. Dudley and Stephens,[21] which tested a defence of "necessity". The Mignotte, sailing from Southampton to Sydney, sank. Three crew members and a 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 one's 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, especially among seafarers, was outraged and overwhelmingly supportive of the crew's right to preserve their own lives. In the end, the Crown commuted their sentences to six months in jail.
Criminal law offences are viewed as offences against not just individual victims, but the community as well.[17] 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.[17] On the international field, 105 countries have signed the enabling treaty for the International Criminal Court, which was established to try people for crimes against humanity.[22]
[edit] Contract law
Main article: Contract
The famous Carbolic Smoke Ball advertisement to cure influenza was held to be a unilateral contract.
The concept of a "contract" is based on the Latin phrase pacta sunt servanda (agreements must be kept).[23] Contracts can be simple everyday buying and selling or complex multi-party agreements. They can be made orally (e.g. buying a newspaper) or in writing (e.g. signing a contract of employment). Sometimes formalities, such as writing the contract down or having it witnessed, are required for the contract to take effect (e.g. when buying a house).[24]
In common law jurisdictions, there are three key elements to the creation of a contract. These are offer and acceptance, consideration and an intention to create legal relations. For example, in Carlill v. Carbolic Smoke Ball Company[25] a medical firm advertised that its new wonder drug, the smokeball, would cure people's 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 puff, a gimmick. But the court of appeal held that to a reasonable man Carbolic had made a serious offer. People had given good consideration for it 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".[25]
"Consideration" means all parties to a contract must exchange something of value to be able to enforce it. Some common law systems, like Australia, are moving away from consideration as a requirement for a contract. The concept of estoppel or culpa in contrahendo can be used to create obligations during pre-contractual negotiations.[26] In civil law jurisdictions, consideration is not a requirement for a contract at all.[27] 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)[28] 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.[29]
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