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Law[2] is a system of rules, enforced through a set of institutions,[3] used as an instrument to underpin civil obedience, politics, economics and society. Law serves as the foremost social mediator in relations between people. Writing in 350 BC, the Greek philosopher Aristotle declared, 'The rule of law is better than the rule of any individual.'[4]
Law consists of a wide variety of separate disciplines. Contract law regulates binding agreements which may relate to everything from civil purchase to trading on derivatives markets. Property law defines rights and obligations related to the transfer and title of personal and real property. Trust law applies to assets held for investment and financial security, while Tort law allows claims for compensation if an individual or their property is injured or harmed. If the harm is criminalised in penal code, criminal law offers means by which the state can prosecute the perpetrator. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law regulates the activities the administrative agencies of government, while International law governs affairs between sovereign nation states in activities ranging from trade, environmental regulation or military action.
Legal systems elaborate rights and responsibilities in a variety of ways. A basic distinction is generally made between civil law jurisdictions and systems using common law. In some countries, religion informs the law. 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.
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Legal subject
All legal systems deal with similar issues and behaviors, but each country categorises and identifies its legal standards and principals 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).[6] 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',[7] although there are many further disciplines which may be of greater practical importance.
International law
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),[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, such as 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. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958.[11]
- European Union law is the first, and so far, only example of a supranational legal framework. 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.[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]
Constitutional 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. 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.'[15]
The fundamental constitutional principle, inspired by John Locke, holds 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.[16] 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.[17]
Criminal law
Criminal law (also known as penal law) pertains to crimes and punishment.[18] It thus regulates the definition of and penalties for offences found to have a sufficiently deleterious social impact.[19] Investigating, apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure.[20] The paradigm case of a crime lies in the proof, in the concept of beyond reasonable doubt, the judgement 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).[21] 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.[22] 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.[23]
Acts of crime 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 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 was 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.[24]
Criminal law offences are viewed as offences against not just individual victims, but the community as well.[19] 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.[25] On the international field, 108 are members of the International Criminal Court, which was established to try people for crimes against humanity.[26]
Contract law
Contract law regulates the exchange of promises between parties to perform or refrain from performing an act enforceable in a court of law. Contracts can be formed from oral or written agreements. The concept of a 'contract' is based on the Latin phrase pacta sunt servanda (agreements must be kept).[27] 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 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'.[28]
'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.[29] In civil law jurisdictions, consideration is not required for a contract to be binding.[30] 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)[31] 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.[32]
Tort law
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.[33] 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.[34] 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 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.'[35]
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.[34] Another example of tort might be a neighbour making excessively loud noises with machinery on his property.[36] 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.[37] More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes,[38] when statute does not provide immunity.[39]
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.[41] 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.[42] 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 ('finders 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.[43] 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.[44] 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.[45]
Equity and Trusts
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.[46] 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.[47] In the early case of Keech v. Sandford[48] 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.'[49]
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 trustee's duty might be to invest property wisely or sell it.[50] This is especially the case for pension funds, the most important form of trust, where investors are trustees for people's 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
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
- Labour law is the study of a tripartite industrial relationship between worker, employer and trade union. This involves collective bargaining regulation, and the right to strike. Individual employment law refers to workplace rights, such as health and safety or a minimum wage.
- Human rights, civil rights and human rights law are important fields to guarantee everyone basic freedoms and entitlements. These are laid down in codes such as the Universal Declaration of Human Rights, the European Convention on Human Rights (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.[51]
- Civil procedure and criminal procedure concern the rules that courts must follow as a trial and appeals proceed. Both concern a citizen's right to a fair trial or hearing.
- Evidence law involves which materials are admissible in courts for a case to be built.
- Immigration law and nationality law concern the rights of foreigners to live and work in a nation-state that is not their own and to acquire or lose citizenship. Both also involve the right of asylum and the problem of stateless individuals.
- Social security law refers to the rights people have to social insurance, such as jobseekers' allowances or housing benefits.
- Family law covers marriage and divorce proceedings, the rights of children and rights to property and money in the event of separation.
- Law and commerce
- Commercial law covers complex contract and property law. The law of agency, insurance law, bills of exchange, insolvency and bankruptcy law and sales law are all important, and trace back to the mediæval Lex Mercatoria. The UK Sale of Goods Acts and the 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 world's oceans and seas, where outside of a country's zone of control. Shipping companies operate through ordinary principles of commercial law, generalised for a global market. Admiralty law also encompasses specialized issues such as salvage, maritime liens, and injuries to passengers.
- Company law sprang from the law of trusts, on the principle of separating ownership of property and control.[52] 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 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.[53]
- Restitution deals with the recovery of someone else's gain, rather than compensation for one's own loss.
- Unjust enrichment is law covering a right to retrieve property from someone that has profited unjustly at another's expense.
- Law and regulation
- Tax law involves regulations that concern value added tax, corporate tax, income tax.
- Banking law and financial regulation set minimum standards on the amounts of capital banks must hold, and rules about best practice for investment. This is to insure against the risk of economic crises, such as the Wall Street Crash of 1929.
- Regulation deals with the provision of public services and utilities. Water law is one example. Especially since privatisation became popular, private companies doing the jobs previously controlled by government have been bound by social responsibilities. Energy, gas telecomms and water are regulated industries in most OECD countries.
- Competition law, known in the U.S. as antitrust law, is an evolving field that traces as far back as Roman decrees against price fixing and the English restraint of trade doctrine. Modern competition law derives from the U.S. anti-cartel and anti-monopoly statutes (the Sherman Act and Clayton Act) of the turn of the 20th century. It is used to control businesses who attempt to use their economic influence to distort market prices at the expense of consumer welfare.
- Consumer law could include anything from regulations on unfair contractual terms and clauses to directives on airline baggage insurance.
- Environmental law is increasingly important, especially in light of the Kyoto Protocol and the potential danger of climate change. Environmental protection also serves to penalise polluters within domestic legal systems.
Legal systems
In general, legal systems can be split between civil law and common law systems.[54] The term civil law should not be confused with civil law as a group of legal subjects, as distinct from criminal or public law. A third type of legal system—still accepted by some countries—is religious law, based on scriptures and interpretations thereof. 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
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.[55] 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 Roman Empire whose texts were rediscovered in medieval Europe. Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class.[56] Instead a lay person, iudex, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised.[57] 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 I 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.[58] 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.'[59] Western Europe, meanwhile, slowly slipped into the Dark Ages, and it was not until the 11th century that scholars in the University of Bologna rediscovered the texts and used them to interpret their own laws.[60] Civil law codifications based closely on Roman law, alongside some influences from religious laws such as Canon law and Islamic law,[61] 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.[62] Today countries that have civil law systems range from Russia and China to most of Central and Latin America.[63]
Common law and equity
Common law and equity are systems of whose distinction derives from the doctrine of precedent, or stare decisis (Latin for 'to stand by decisions'). In addition to precedent, common law systems are codified by governments enabled to pass new laws and statutes. Common law originated from England and has been adapted by almost every country once tied to the British Empire; with the exceptions of Malta, Scotland, South Africa, the U.S. state of Louisiana and the Canadian province of Quebec. Common law's roots are to be found in in medieval England, and was influenced by the Norman conquest of England which introduced legal concepts and institutions from its own and possibly also Islamic law.[64] Common law further 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 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.[65] 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.[66] This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law.[67] 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.[68] 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.[69] But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.[70]
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. 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,[71] 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, which at least one scholar has claimed had an influence on the early development of the common law,[64] as well as some influence on civil law.[72] 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 Talmud's interpretations. Nevertheless, Israeli law allows litigants to use religious laws only if they choose. Canon law is only in use by members of the clergy in the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion.
Until the 18th century, Sharia law was practiced throughout the Muslim world in a non-codified form, with the Ottoman Empire's Mecelle code in the 19th century being 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.[73] 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.[74] Saudi Arabia recognises Quran as its constitution, and is governed on the basis of Islamic law.[75] Iran has also witnessed a reiteration of Islamic law into its legal system after 1979.[76] 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.[77]
Legal theory
History of law
The history of law is closely connected to the development of civilization. Ancient Egyptian law, dating as far back as 3000 BC, contained 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.[78] By the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code, which consisted of casuistic statements ('if ... then ...'). Around 1760 BC, King Hammurabi further developed Babylonian law, by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as stelae, for the entire public to see; this became known as the Codex Hammurabi. The most intact copy of these stelae was discovered in the 19th century by British Assyriologists, and has since been fully transliterated and translated into various languages, including English, German, and French.[79]
The Old Testament is likely the oldest surviving body of law still relevant to modern legal systems. It dates back to 1280 BC, and takes the form of moral imperatives as recommendations for a good society. The small Greek city-state, Ancient Athens, and from about 8th century BC was the first society to be based on broad inclusion of its citizenry; excluding women and the slave class. However. Athens had no legal science, and no word for 'law' as an abstract concept.[80] Yet Ancient Greek law contained major constitutional innovations in the development of democracy.[81]
Roman law was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists, and were highly sophisticated.[82] Over the centuries between the rise and decline of the Roman Empire, law was adapted to cope with the changing social situations, and underwent major codification during Justinian I.[83] Although it declined in significance during the Dark Ages, Roman law was rediscovered around the 11th century when mediæval legal scholars began to research Roman codes and adapt their concepts. In mediæval England, the King's judges developed a body of precedent, which later became the common law. A Europe-wide Lex Mercatoria was formed so that merchants could trade with common standards of practice; rather than with the many splintered facets of local laws. The Lex Mercatoria, a precursor to modern commercial law, emphasised the freedom of contract and alienability of property.[84] 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. In contrast to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and easy for judges to apply. However, today there are signs that civil and common law are converging.[85] EU law is codified in treaties, but develops through the precedent laid down by the European Court of Justice.
Islamic law and jurisprudence developed during the Middle Ages.[86] The methodology of legal precedent and reasoning by analogy (Qiyas) used in early Islamic law was similar to that of the later English common law system.[87] This was particularly the case for the Maliki school of Islamic law active in North Africa, Islamic Spain and the Emirate of Sicily. Between the 8th and 11th centuries, Maliki law developed several legal institutions that were parallel with later common law institutions.[88]
Ancient India and China represent distinct traditions of law, and have historically had independent schools of legal theory and practice. The Arthashastra, probably compiled around 100 AD (although it contains older material), and the Manusmriti (c. 100–300 AD) were foundational treatises in India, and comprise texts considered authoritative legal guidance.[89] Manu's central philosophy was tolerance and Pluralism, and was cited across Southeast Asia.[90] This Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire.[91] Malaysia, Brunei, Singapore and Hong Kong also adopted the common law. The eastern Asia legal tradition reflects a unique blend of secular and religious influences.[92] Japan was the first country to begin modernising its legal system along western lines, by importing bits of the French, but mostly the German Civil Code.[93] This partly reflected Germany's status as a rising power in the late 19th century. Similarly, traditional Chinese law gave way to westernisation towards the final years of the Ch'ing dynasty in the form of six private law codes based mainly on the Japanese model of German law.[94] Today Taiwanese law retains the closest affinity to the codifications from that period, because of the split between Chiang Kai-shek's nationalists, who fled there, and Mao Zedong'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.[95] Due to rapid industrialisation, today China undergoing a process of reform, at least in terms of economic, if not social and political, rights. A new contract code in 1999 represented a move away from administrative domination.[96] Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organisation.[97]
Philosophy of law
| '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.[98] |
The philosophy of law is commonly known as jurisprudence. Normative jurisprudence is essentially political philosophy, and asks 'what should law be?', while analytic jurisprudence is asks 'what is law?'. John 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'.[99] Natural lawyers on the other side, such as Jean-Jacques Rousseau, argue that law reflects essentially moral and unchangeable laws of nature. The concept of 'natural law' emerged in ancient Greek philosophy concurrently and in entanglement with the notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas and the commentaries of Islamic philosopher and jurist Averroes.[100]
Hugo Grotius, the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse—as Aristotle had indicated—and reason.[101] Immanuel Kant believed a moral imperative requires laws 'be chosen as though they should hold as universal laws of nature'.[102] Jeremy Bentham and his student Austin, following David Hume, believed that this conflated the 'is' and what 'ought to be' problem. Bentham and Austin argued for law's positivism; that real law is entirely separate from 'morality'.[103] Kant was also criticised by Friedrich Nietzsche, who rejected the principle of equality, and believed that law emanates from the will to power, and cannot be labelled as 'moral' or 'immoral'.[104]
In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law.[105] Kelsen believed that although law is separate from morality, it is endowed with 'normativity'; meaning we ought to obey it. While laws are positive 'is' statements (e.g. the fine for reversing on a highway is €500); law tells us what we 'should' do. Thus, each legal system can be hypothesised to have a basic norm (Grundnorm) instructing us to obey. Kelsen's major opponent, Carl Schmitt, rejected both positivism and the idea of the rule of law because he did not accept the primacy of abstract normative principles over concrete political positions and decisions.[106] Therefore, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could encompass of all political experience.[107]
Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fictions in The Concept of Law.[108] Hart argued law is a system of rules, divided into primary (rules of conduct) and secondary ones (rules addressed to officials to administer primary rules). Secondary rules are further 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 continued the debate: In his book Law's Empire, Ronald Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an 'interpretive concept',[109] 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, defended the positivist outlook and criticised Hart's 'soft social thesis' approach in The Authority of Law.[110] Raz argues that law is authority, identifiable purely through social sources and without reference to moral reasoning. In his view, any categorisation of rules beyond their role as authoritative instruments in mediation are best left to sociology, rather than jurisprudence.[111]
Economic analysis of law
In the 18th century Adam Smith presented a philosophical foundation for explaining the relationship between law and economics.[112] 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 including Milton Friedman and Gary Becker, are generally advocates of deregulation and privatisation, and are hostile to state regulation or what they see as restrictions on the operation of free markets.[113]
The most prominent economic analyst of law is 1991 Nobel Prize winner Ronald Coase, whose first major article,