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Law

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CAUTION: Please be aware that the rest of this article is written from a British perspective and is, therefore, not generally true of the United States, even where it specifically refers to the U.S.

Legal subjects

Different countries often categorise and name legal subjects in different ways. Sometimes people distinguish "public law" subjects, which relate closely to the state (including constitutional, administrative and criminal law), from "private law" subjects (including contract, tort, property). 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. All legal systems deal with the same issues, because the same questions are raised in every society. To practice law, students usually learn certain core subjects, which for example in England are European Community Law, constitutional and administrative law, criminal law, contract, tort, property law and trusts. However there are many further disciplines, which may be of even greater practical importance than the traditional core subjects and outside the EU, students may focus on different agreements under international law, such as NAFTA, SAFTA, CSN, ASEAN or the African Union. The best way to grasp the importance of these subjects is careful individual study.

International law

For more information, see: Public international law, Conflict of laws, and European Union law

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 the relationships between sovereign nations. Public international law has a special status, because it has no police force, and its courts lack the capacity to punish disobedience.^[9] The sources of its development are custom, practice and treaties between sovereign nations. The United Nations, founded under the UN Charter and the Universal Declaration of Human Rights is the most important international organisation, established after the failure of the Versailles Treaty and World War II. Other international agreements, like the Geneva Conventions on the conduct of war and international bodies such as the 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 only example of a supranational legal framework. However, given increasing global economic integration, many regional agreements, especially the South American Community of 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.^[10] Therefore, European Union law constitutes "a new legal order of international law" for the mutual social and economic benefit of the member states.^[11]

Constitutional and administrative law

For more information, see: Constitutional law and Administrative law

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; in those jurisdictions the constitution is composed of statute, case law and convention. A case named Entick v. Carrington^[12] illustrates a constitutional principle deriving from the common law. Mr Entick's house was searched and ransacked by Sherrif Carrington. When Mr Entick complained in court, Sherrif 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,^[13] is that the individual can do anything but that which is forbidden by law, while the state may do nothing but that which is authorised by law. 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'Etat set up in 1799, as Napoleon assumed power in France.^[14]

Criminal law

For more information, see: Criminal law

Criminal law is the body of law that defines criminal offences and the penalties for convicted offenders.^[15] Apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure.^[16] In every jurisdiction, a serious crime is committed where two elements are fulfilled. First, the defendant must have the requisite guilty mind to do a criminal act, or mens rea (evil mind). In modern criminal law as recommended by the American Law Institute's Model Penal Code and enacted in many states, mens rea, also known as "mental culpability," has four main forms: purposely (or intentionally as in intentional murder); knowing (as in knowingly possessing narcotics); reckless (as in reckless manslaughter); and criminally negligent ( as in criminally negligent manslaughter). Second, the defendant must commit the voluntary criminal act, or actus reus (guilty act). Examples of different kinds of crime include murder, assault, fraud or theft.

If relevant facts are alleged and proved, exculpatory defences exist to crimes, such as killing in self defence, or pleading insanity. A famous case in 19th century England, R v. Dudley and Stephens ^[17] involved the 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, the cabin boy close to death. So 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." They were sentenced to hang. Yet public opinion, especially among seafarers was outraged and overwhelmingly supportive. In the end, the Crown commuted their sentences to six months.

The offenses that involve criminal law are those construed as being against the state.^[15] In common law countries the government takes the lead in prosecution and cases are cited as "The People v. ..." or "R. v. ..." Also, in many countries, lay juries determine the guilt of defendants on points of fact, although they may not change legal rules themselves. Some developed countries still have capital punishment for criminal activity, but the normal punishment for a crime will be imprisonment, fines, or community service. Modern criminal law has been affected considerably by the social sciences, especially with respect to sentencing, legal research, legislation, and rehabilitation.^[15] On the international field 104 countries have signed up to the International Criminal Court, which was set up to try people for crimes against humanity.^[18]

Contract

For more information, see: Contract

Contract is based on the Latin phrase pacta sunt servanda (promises must be kept).^[19] 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).^[20]

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 a medical firm advertised that its new wonder drug, the smokeball, would cure people's flu, and if it did not, buyers would get £100.^[21] 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 merely an invitation to treat, or 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".^[21]

"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.^[22] In civil law jurisdictions, consideration is not a requirement for a contract at all.^[23] 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)^[24] 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.^[25]

Tort

For more information, see: Tort

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.^[26] Under negligence law, the most common form of tort, the injured party can make a claim against the party responsible for the injury. The principles of negligence are illustrated by Donoghue v. Stevenson.^[27] Mrs Donoghue ordered an opaque bottle of ginger beer in a cafe in Paisley. Having consumed half of it, she poured the remainder into a tumbler. The decomposing remains of a dead snail floated out. She fell ill 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."^[28]

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, or not too remote a consequence, of her harm.^[27] Another example of tort might be a neighbour making excessively loud noises with machinery on his property.^[29] 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.^[30] More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes,^[31] when statute does not provide immunity.^[32]

Property law

For more information, see: Property law and Property

Property law governs everything that people call 'theirs'. Real property, sometimes called 'real estate' or a right in rem, refers to ownership of land and things attached to it.^[33] Personal property, or a right in personam, refers to everything else; movable objects, such as computers or sandwiches or intangible rights, like stocks and shares or the copyright on a song. The classic civil law approach to property, propounded by Friedrich Carl von Savigny is that it is a right good against the world. This contrasts to an obligation, like a contract or tort, which is a right good between individuals.^[34] Preferred in common law jurisdictions is an idea closer to an obligation; that the person who can show the best claim to a piece of property, against any contesting party, is the owner.^[35] The idea of property raises important philosophical and political issues. John Locke famously argued that our "lives, liberties and estates" are our property because we own our bodies and mix our labour with our surroundings.^[36] The idea of property is still contentious. French philosopher Pierre Proudhon most famously proclaimed, "property is theft".^[37]

Land law forms the basis for most kinds of property law, and is the most complex. It concerns mortgages, rental agreements, licences, convenants, easements and the statutory systems for registration of land. Regulations on the use of personal property fall under intellectual property, company law, trusts and commercial law.

Trusts and equity

For more information, see: Trust law and Equity

Equity is a body of rules from England that used to be separate from the "common law". Whilst "law" was administered by judges, the Lord Chancellor was the King's keeper of conscience.^[38] He had authority to overrule the judges' law if they were too strict. Equity operates by principles rather than rigid rules. Whereas civil law systems, and the common law, do not allow two people to split ownership of one piece of property, equity allows this through the trust instrument. '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 trust.^[39] For example, in the early case of Keech v. Sandford^[40] a child had inherited the lease on a market in Romford, London. Mr Sandford was entrusted to look after this property for the benefit of the child, until he was an adult. But the lease on the market was about to expire, and the landlord had (apparently) told Mr Sandford that he would not renew it for the child. But the landlord was happy, instead, to give the opportunity to Mr Sandford. Later on, the grown up child, Mr Keech sued his old trustee for the profit that he had made by getting the market's lease, because it represented a 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."^[41]

Of course, Lord King LC was worried that trustees might exploit money they were meant to look after for their own benefit instead of doing their job. Just recently there had been a stock market crash, involving abuse of trusts. Strict duties like this made their way into company law and were applied to directors and chief executive officers. Another example of a duty might be for the trustee to invest the property wisely or sell it.^[42] This is especially the case for pension funds, the most widely used type of trust, where banks are trustees for people's savings until their retirement. But trusts can also be set up for charitable purposes, famous examples being the British Museum or the Rockefeller Foundation.

Further disciplines

Law spreads far beyond the core subjects, into practically every area of life. Three categories are presented for convenience, though the subjects intertwine and flow into one another.

Law and Society

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 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 rights 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 of course the rights to property and money in the event of separation.
Succession Law deals with deceased estates, requirements for making, revoking, altering and interpreting wills, distribution of assets on intestacy and protection for family and dependants.

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 mediaeval lex mercatoria. The UK Sale of Goods Acts and the 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 and control.^[43] 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, like the right not to have your idea for an invention stolen, a brand name or a song you have written.
Partnership law deals with the law relating to partnerships.^[44]
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 is probably the most complicated and well paid discipline, involving Value Added Tax, Corporation Tax, Income Tax, and most importantly, lots of money.
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.
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, in the U.S. known as antitrust law, is an evolving and relatively new kind of law that began in the late 19th Century with the restraint of trade doctrine. The U.S. adopted anti-cartel and anti-monopoly statutes around the turn of that century. See the Sherman Act and Clayton Act.
Consumer Law could include anything from regulations on unfair contract terms and conditions, or directives on airline baggage insurance.
Environmental law is increasingly important, especially in light of the Kyoto Protocol and the imminent danger of climate change. Environmental protection also serves to penalise polluters within countries.

Legal systems

For more information, see: Legal systems of the world

In general, legal systems around the world can be split between civil law jurisdictions on the one hand and on the other systems using common law and equity. The term civil law, referring to a legal system, should not be confused with civil law as a group of legal subjects, as distinguished from criminal law or public law. A third type of legal system, still accepted by some countries in part, or even in whole, is religious law, based on scriptures and interpretations thereof. The specific system that a country follows is often determined by its histories, and countries that have been historically linked often follow similar systems. The classification of different systems is a matter of form rather than substance, since similar rules often prevail. The sources that jurisdictions recognise as authoritatively binding are the defining features of legal systems.

Civil law

For more information, see: Civil law

Civil law is the legal system used in most countries around the world today. In civil law, the sources recognised as authoritative are codifications, in constitutions or statutes passed by government. Codifications date back millenia, with one early example being the ancient Babylonian Codex Hammurabi, but modern civil law systems essentially derive from the legal practice of the Roman Empire, whose texts were rediscovered in medieval Europe. Roman law, in the days of the Roman republic and Empire, was heavily procedural and there was no professional legal class.^[45] Instead a lay person, iudex, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised.^[46] 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. During the 6th century AD, in the Eastern Roman Empire, the Emperor Justinian codified and consolidated the laws that had existed in Rome so that what remained was one twentieth of the mass of legal texts from before.^[47] 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"^[48] Western Europe, meanwhile, slowly slipped into the dark ages, and it was not until the eleventh century AD that in scholars in the University of Bologna rediscovered the texts and used them to interpret their own laws.^[49] Civil law codifications based closely on Roman law continued to spread throughout Europe until the Enlightenment; then, in the nineteenth 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 Europen (e.g. Greece), but also the Japanese, and Korean legal traditions.^[50] Today countries that have civil law systems range from Russia, and China to most of central and Latin America.^[51]

Common law and equity

For more information, see: Common law

Common law and equity are systems of law whose special distinction is the doctrine of precedent, or stare decisis (Latin for "to stand by decisions"). Alongside this "judge made law", common law systems always have governments who pass new laws and statutes. But these are not put into a codified form. Common law comes from England and was inherited by almost every country that once belonged to the British Empire, with the exceptions being Malta, Scotland and the US state of Louisiana.

Common law had its beginnings in the middle ages, when the English monarchy had been weakened by the enormous cost of fighting the crusades. 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 King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country.^[52] 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.^[53] This powerful and tight-kinit judiciary gave rise to a rigid and inflexible system of common law.^[54] As a result, as time went on increasing numbers of citizens petitioned the King to override the common law, and on the King's 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 "varies like the Chancellor's foot". But over time it developed solid principles, especially under Lord Eldon.^[55] In the nineteenth century the two systems were fused into one another. Academic authors have always played an important part in developing the common law. William Blackstone was the first scholar to describe and teach it.^[56] In fact, people who sought explanations and underlying structures changed the way the law worked merely by describing it.^[57]

Religious law

For more information, see: Religious law

Religious law refers to the notion that the word of God is a law. Examples include the Jewish Halakha and Islamic Sharia, both of which mean the "path to follow". Christian Canon law also survives in some Church communities. The implication of religion for law is unalterability, because the word of God cannot be amended or legislated against by judges or governments. However, religious texts never include the scale of law needed in a developed community. For instance, the Koran has some law, but not much and it acts merely as a source of further law, through interpretation.^[58] This is mainly contained in a body of jurisprudence known as the fiqh. In some cases religious law is intended purely as individual moral guidance. The first five books of the Old Testament are known as the Torah and include Genesis, Exodus, Leviticus, Numbers and Deuteronomy. The Halakha is the interpretation of teachings and is followed by orthodox and conservative Jews in both ecclesiastical and civil relations. No country is fully governed by Halakha, but two Israeli people may decide, because of personal belief, to have a dispute heard by a Jewish court, and be bound by its rulings. Sharia law similarly is merely an optional supplement to the civil or common law of most countries, though Saudi Arabia and Iran's whole legal systems source their law in Sharia. Canon law is only in use by members of the clergy the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion.

Jurisdictions

Despite the usefulness of different classifications, every legal system has its own individual identity. Below are groups of legal systems, categorised by their geography. Click the "show" buttons on the right for the lists of countries.

Template:Africa in topic Template:North America in topic Template:South America in topic Template:Asia in topic Template:Europe in topic Template:Oceania in topic

Legal theory

History of law

For more information, see: Legal history

The history of law is closely connected to the development of civilizations. Ancient Egyptian law, dating as far back as 3000BC, had a civil code that was probably broken into twelve books. It was based on the concept of Ma'at, characterised by tradition, rhetorical speech, social equality and impartiality.^[59] Around 1760 BC under King Hammurabi, ancient Babylonian law was codified and put in stone for the public to see in the marketplace. This became known as the Codex Hammurabi, which was found in a stone engraving. But like Egyptian law, which is pieced together by historians from records of litigation, few sources remain. The influence of these earlier laws on later civilizations was small.^[60] The Torah from the Old Testament is probably the oldest body of law still relevant for modern legal systems, dating back to 1280BC. It takes the form of moral imperatives, like the Ten Commandments and the Noahide Laws, as recommendations for a good society. Ancient Athens, the small Greek city-state, was the first society based on broad inclusion of the citizenry, excluding women and the slave class. Athens had no legal science, and Ancient Greek has no word for "law" as an abstract concept.^[61] Yet Ancient Greek law contained major constitutional innovations in the development of democracy.^[62]

Roman law was heavily influenced by Greek teachings.^[63] It forms the bridge to the modern legal world, over the centuries between the rise and decline of the Roman Empire.^[64] Roman law underwent major codification in the Corpus Juris Civilis of Emperor Justinian. Roman law was lost through the Dark Ages, but rediscovered around the eleventh century. Mediæval legal scholars began researching the Roman codes and using their concepts. In Mediæval England, the King's powerful judges began to develop a body of precedent, which became the common law. But also, a Europe wide lex mercatoria was formed, so that merchants could trade using familiar standards, rather than the many splintered types of local law. A precursor to modern commercial law, the lex mercatoria emphasised the freedom of contract and alienability of property.^[65] As nationalism grew in the 18th and 19th centuries, lex mercatoria was incorporated into countries' local law under new civil codes. The French Napoleonic Code and the German became the most influential. As opposed to the common law used in England, or the U.S.A. consisting of massive tomes of case law, codes in small books are easy to export. However, today there are signs that civil and common law are converging. European Union law is codified in treaties, but develops through the precedent laid down by the European Court of Justice.

Ancient India and China represent distinct traditions of law, and had historically independent schools of legal theory and practice. The Arthashastra, dating from the 400BC, and the Manusmriti from 100AD were influential treatises in India, texts that were considered authoritative legal guidance.^[66] Manu's central philosophy was tolerance and pluralism, and was cited across South East Asia.^[67] But this Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire.^[68] Malaysia, Brunei, Singapore and Hong Kong also adopted the common law. The legal tradition of the Eastern Asia reflects a unique blend of secular and religious influences.^[69] Japan was the first country to begin modernising its legal system on western lines, by importing the French, but mostly the German Civil Codes.^[70] This partly reflected Germany's status as a rising power in the late nineteenth century and traditional Chinese law gave way towards the final years of the Ch'ing dynasty to westernisation in the form of six private law codes based mainly on the Japanese model of German law.^[71] Today Taiwanese law retains the closest affinity to the codifications from that period, because of the split between Chang Kai Shek's nationalists, who fled there, and Mao Tse Tung's communists who won control of the mainland in 1949. The current legal infrastructure in the People's Republic of China was heavily influenced by soviet Socialist law, which essentially inflates administrative law at the expense of private law rights.^[72] Today, however, because of rapid industrialisation, China has been reforming, and a new contract code in 1999 represented a turn away from administrative domination.^[73] Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organisation.^[74]

Philosophy of law

For more information, see: Jurisprudence

See also: Political philosophy

"But what, after all, is a law? [...] When I say that the object of laws is always general, I mean that law considers subjects en masse and actions in the abstract, and never a particular person or action. [...] On this view, we at once see that it can no longer be asked whose business it is to make laws, since they are acts of the general will; nor whether the prince is above the law, since he is a member of the State; nor whether the law can be unjust, since no one is unjust to himself; nor how we can be both free and subject to the laws, since they are but registers of our wills."

Jean-Jacques Rousseau, The Social Contract, II, 6.^[75]

The philosophy of law is known as jurisprudence. Normative jurisprudence is essentially political philosophy and asks "what should law be?". Analytic jurisprudence asks on the other hand, "what is law?". An early famous philosopher of law was John Austin, a student of Jeremy Bentham and first chair of law at the new University of London from 1829. Austin's utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience".^[6] This approach was long accepted, especially as an alternative to natural law theory. Natural lawyers, such as Jean-Jacques Rousseau, argue human law reflects essentially moral and unchangeable laws of nature. Immanuel Kant, for instance, believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature".^[76] Austin and Bentham, following David Hume thought this conflated what "is" and what "ought to be" the case. They believed in law's positivism, that real law is entirely separate from "morality".^[77]

In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law.^[78] Kelsen believed that though law is separate from morality, it is endowed with "normativity", meaning we ought to obey it. Whilst laws are positive "is" statements (e.g. the fine for reversing on a highway is $500), law tells us what we "should" do (i.e. not drive backwards). So every legal system can be hypothesised to have a basic norm (Grundnorm) telling us we should obey the law. Later in the twentieth century H.L.A. Hart attacked Austin for his simplifications and Kelsen for his fictions in The Concept of Law.^[79] As the chair of jurisprudence at Oxford University, Hart argued law is a "system of rules". Rules, said Hart, are divided into primary rules (rules of conduct) and secondary rules (rules addressed to officials to administer primary rules). Secondary rules are divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). Two of Hart's students have continued the debate since. Ronald Dworkin was his successor in the Chair of Jurisprudence at Oxford and his greatest critic. In his book Law's Empire Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an "interpretive concept", that requires judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions. Joseph Raz on the other hand has defended the positivist outlook and even criticised Hart's 'soft social thesis' approach in The Authority of Law.^[5] Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorisation of rules beyond their role as authoritative dispute mediation is best left to sociology, rather than jurisprudence.^[80]

Economic analysis of law

For more information, see: Law and economics

Economic analysis of law is an approach to legal theory that incorporates and applies the methods and ideas of economics to law. The discipline arose partly out of a critique of trade unions and U.S. Antitrust law. The most influential proponents, such as Richard Posner and Oliver Williamson and the so called Chicago School of economists and lawyers, such as Milton Friedman and Gary Becker, are generally advocates of deregulation and privatization, and are hostile to state regulation, or what they see as restrictions on the operation of free markets.^[81]

The most decorated economic analyst of law is 1991 Nobel Prize winner Ronald Coase. His 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.^[82] 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.^[83] Coase used the example of a nuisance case named Sturges v. Bridgman, where a noisy sweetmaker and a quiet doctor were neighbours and went to court to see who should have to move.^[84] Coase said that regardless of whether the judge ruled that the sweetmaker had to stop using his machinery, or that the doctor had to put up with it, they could strike a mutually beneficial bargain about who moves house that reaches the same outcome of resource distribution. Only, the existence of transaction costs may prevent this.^[85] So the law ought to pre-empt what would happen, and be guided by the most efficient solution. The idea is that law, and regulation, is not as important or effective at helping people as lawyers, and government planners, believe.^[86] Coase and others like him wanted a change of approach, to put the burden of proof for positive effects on a government that was intervening in the market, by analysing the costs of action.^[87]

Sociology of law

For more information, see: Sociology of law

Sociology of law is a diverse field of study which includes social scientific investigations of the institutions of law, the professionalisation of law and lawyers, the social construction of legal issues and systems, and the interaction of legal institutions, doctrines, and practices with other aspects of society. The field was initially received with suspicion by legal theorists, such as Kelsen, who attacked one of its founders, Eugen Ehrlich.^[88] Weber, who was also critical towards Ehrlich, defined the scope of a new social scientific approach to law, while his theories influenced Karl Horvath, Hugo Sinzheimer, and Theodor Geiger. Other important early contributors to the sociology of law were Emile Durkheim, Georges Gurvitch and Leon Petrażycki in Europe, and Roscoe Pound and William Graham in the U.S.^[89]

Legal institutions

"It is a real unity of them all in one and the same person, made by covenant of every man with every man, in such manner as if every man should say to every man: I authorise and give up my right of governing myself to this man, or to this assembly of men, on this condition; that thou give up, thy right to him, and authorise all his actions in like manner.

Thomas Hobbes, Leviathan, XVII

The main institutions of law in industrialised countries are independent courts, representative parliaments, an accountable executive, the military and police, bureaucratic organisation, the profession of lawyers and civil society itself. John Locke in Two Treatises On Civil Government and Baron de Montesquieu after him in The Spirit of the Laws advocated a separation of powers between the institutions that wield political influence, namely the judiciary, legislature and executive.^[90] Their principle was that no person should be able, as Thomas Hobbes wanted an all powerful sovereign to be, to usurp a Leviathan of power.^[91] More recently Max Weber and many others reshaped thinking about the extensions of the state that come under the control of the executive. Modern military, policing and bureaucratic power over ordinary citizens' daily lives pose special problems for accountability that earlier writers like Locke and Montesquieu could not have foreseen. The custom and practice of the legal profession itself is an important part of people's access to justice, whilst civil society is a term used to refer to the social institutions, communities and partnerships that are the political base of the law.

Judiciary

For more information, see: Judiciary

A judiciary is a group of judges who mediate and determine the outcome of peoples' disputes. Most countries have a system of appeals courts, up to a supreme authority. In the U.S. this is the Supreme Court^[92] or in Australia, the High Court. In the U.K. the highest court is the House of Lords,^[93] In Germany there is a Supreme Federal Constitutional Court, while the main court of last resort in France is the Cour de Cassation.^[94] However, for most European countries the European Court of Justice^[95] in Luxembourg may overrule national law, where EU law is relevant. Also the European Court of Human Rights in Strasbourg allows any European citizen to appeal cases to it, where human rights issues arise.

Almost every country in the world allows its highest judicial authority to strike down legislation that is determined to be unconstitutional. For instance, the United States Supreme Court struck down a Texan law forbidding women to be assisted with abortion in Roe v. Wade.^[96] The constitution's fourteenth amendment is interpreted to give Americans a right to privacy, and a woman's right to choose to have an abortion is part of that. The judiciary is theoretically bound by a constitution, as much legislatures are. In most countries judges may only interpret the constitution, and all other laws. However in common law countries, where matters ar

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