Law is a system of rules to be enforced through a set of institutions. It shapes politics, economics and society in numerous ways. Contract law regulates everything from buying a bus ticket to trading swaptions on a derivatives market. Property law defines rights and obligations related to transfer and title of personal and real property, for instance, in mortgaging or renting a home. Trust law applies to assets held for investment and financial security, such as pension funds. Tort law allows claims for compensation when someone or their property is injured or harmed. If the harm is criminalised in a penal code, criminal law offers means by which the state prosecutes and punishes the perpetrator. Constitutional law provides a framework for creating laws, protecting people's human rights, and electing political representatives. Administrative law relates to the activities of administrative agencies of government. International law regulates affairs between sovereign nation-states in everything from trade to the environment to military action. "The rule of law", wrote the ancient Greek philosopher Aristotle in 350 BC, "is better than the rule of any individual."
Legal systems around the world elaborate legal rights and responsibilities in different ways. A basic distinction is made between civil law jurisdictions and systems using common law. Some countries persist in basing their law on religious texts. Scholars investigate the nature of law through many perspectives, including legal history and philosophy, or social sciences such as economics and sociology. The study of law raises important questions about equality, fairness and justice, which are not always simple. "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."[4] The most important institutions for law are the judiciary, the legislature, the executive, its bureaucracy, the military and police, the legal profession and civil society. Though all legal systems must deal with similar issues, different countries often categorise and name legal subjects in different ways. Quite common is the distinction between "public law" subjects, which relate closely to the state (including constitutional, administrative and criminal law), and "private law" subjects (including contract, tort and property).[5] 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",[6] although there are many further disciplines which might be of greater practical importance.
[edit] International law
Main articles: Public international law, Conflict of laws, and European Union law
Providing a constitution for public international law, the United Nations was conceived during World War II.
Providing a constitution for public international law, the United Nations was conceived during World War II.
In a global economy, law is globalising too. International law can refer to three things: public international law, private international law or conflict of laws and the law of supranational organisations.
* Public international law concerns relationships among sovereign nations. It has a special status as law because there is no international police force, and courts lack the capacity to penalise disobedience.[7] The sources for public international law to develop are custom, practice and treaties between sovereign nations. The United Nations, founded under the UN Charter, is one of the most important international organisations. It was established after the Treaty of Versailles' failed to prevent the Second World War. International agreements, like the Geneva Conventions on the conduct of war, and international bodies such as the International Court of Justice, 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. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958.
* 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.[8] As the European Court of Justice said in 1962, European Union law constitutes "a new legal order of international law" for the mutual social and economic benefit of the member states.[9]
[edit] Constitutional and administrative law
Main articles: Constitutional law and Administrative law
The French Declaration of the Rights of Man and of the Citizen, whose principles still have constitutional value
The French Declaration of the Rights of Man and of the Citizen, whose principles still have constitutional value
Constitutional and administrative law govern the affairs of the state. Constitutional law concerns both the relationships between the executive, legislature and judiciary and the human rights or civil liberties of individuals against the state. Most jurisdictions, like the United States and France, have a single codified constitution, with a Bill of Rights. A few, like the United Kingdom, have no such document; in those jurisdictions the constitution is composed of statute, case law and convention. A case named Entick v. Carrington[10] 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,[11] 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. 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.[12]
[edit] Criminal law
Main article: Criminal law
A depiction of a 1600s criminal trial, for witchcraft in Salem
A depiction of a 1600s criminal trial, for witchcraft in Salem
Criminal law is the body of law that defines criminal offences and the penalties for convicted offenders.[13] Apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure.[14] 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).[15] 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.[16]
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,[17] 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.[13] 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.[13] 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.[18]
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