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Law - DefinitionSep 27th, 2008
Law[2] is a system of rules, usually enforced through a set of institutions, [3] used to underpin civil obedience, politics, economics and society. Law consists of a number of separate disciplines. Contract law regulates everything from civil purchase to trading swaptions on derivatives markets. Property law defines rights and obligations related to transfer and title of personal and real property. Trust law applies to assets held for investment and financial security, incluiding 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 in 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 continue to base 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.
[edit] Legal subjects
Though all legal systems deal with similar issues, different
countries categorise and identify legal subjects in seperate ways. A
common distinction is thar between "public law" subjects (a term related 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
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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.
- 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
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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'��tat set up in 1799, as Napoleon assumed power in France.[16]
[edit] Criminal law
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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]
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
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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]
[edit] Tort law
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The " McLibel" two were involved in the longest running case in UK history for publishing a pamphlet criticising McDonald's 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.[30] Under negligence
law, the most common form of tort, the injured party could potentially
claim compensation for his injuries from the party responsible. The
principles of negligence are illustrated by Donoghue v. Stevenson.[31] A friend of Mrs Donoghue ordered an opaque bottle of ginger beer (intended for the consumption of Mrs Donoghue) in a caf�© 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 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."[32]
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.[31] Another example of tort might be a neighbour making excessively loud noises with machinery on his property.[33] 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.[34] More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes,[35] when statute does not provide immunity.[36]
[edit] Property law
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Main article: Property law
Property law governs valuable things that people call 'theirs'. Real property, sometimes called 'real estate' refers to ownership of land and things attached to it.[38] Personal property, refers to everything else; movable objects, such as computers, cars, jewelry, and sandwiches, 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.[39] A chimney sweep's
boy found a jewel encrusted with precious stones. He took it to a
goldsmith to have it valued. The goldsmith's 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 apprentice's 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 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 boy's possessory interest was considered
better, because it could be shown to be first in time. Physical
possession is 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.[40] 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.[41]
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.[42]
[edit] Equity and Trusts
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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 King's keeper of conscience, could overrule the judge made law if he thought it equitable to do so.[43] 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.[44] In the early case of Keech v. Sandford[45] 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 market's 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."[46]
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.
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