Law is a term which does not have a universally accepted definition, but one definition is that law is a system of rules and guidelines which are enforced through social institutions to govern behavior. Laws can be made by legislatures through legislation (resulting in statutes), the executive through decrees and regulations, or judges through binding precedents (normally in common law jurisdictions). Private individuals can create legally binding contracts, including (in some jurisdictions) arbitration agreements that exclude the normal court process. The formation of laws themselves may be influenced by a constitution (written or unwritten) and the rights encoded therein. The law shapes politics, economics, and society in various ways and serves as a social mediator of relations between people.
Under civil law, the following specialties, among others, exist: Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law regulates the transfer and title of personal property and real property. Trust law applies to assets held for investment and financial security. Tort law allows claims for compensation if a person’s property is harmed. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies. International law governs affairs between sovereign states in activities ranging from trade to military action.
To implement and enforce the law and provide services to the public by public servants, 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.
International law can refer to three things: public international law, private international law or conflict of laws and the law of supranational organizations.
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 organizations, such as the United Nations (which was established after the failure of the League of Nations to prevent the Second World War), the International Labor Organization, the World Trade Organization, 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 penalize disobedience. However, a few bodies, such as the WTO, have effective systems of binding arbitration and dispute resolution backed up by trade sanctions.
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 labor supply chains across borders, as well as trading with overseas businesses, making the question of which country has jurisdiction even more pressing. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958.
European Union law is the first and, so far, only example of an internationally accepted legal system other than the UN and the World Trade Organization. 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. 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.
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.
Criminal law, also known as penal law, pertains to crimes and punishment. It thus regulates the definition of and penalties for offenses found to have a sufficiently deleterious social impact but, in itself, makes no moral judgment on an offender nor imposes restrictions on society that physically prevent people from committing a crime in the first place. Investigating, apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure. 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). 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. 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.
Contract law concerns enforceable promises, and can be summed up in the Latin phrase pacta sunt servanda (agreements must be kept). 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.
“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. In civil law jurisdictions, consideration is not required for a contract to be binding. 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, the contractual obligation to pay can be invalidated separately from the proprietary title. Unjust enrichment law, rather than contract law, is then used to restore title to the rightful owner.
Torts, sometimes called delicts, are civil wrongs. To have acted tortiously, one must have breached a duty to another person, or infringed some preexisting legal right. A simple example might be accidentally hitting someone with a cricket ball. Under the law of negligence, the most common form of tort, the injured party could potentially claim compensation for their injuries from the party responsible.
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 neighbor becomes in law, you must not injure your neighbor; and the lawyer’s question, Who is my neighbor? 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 neighbor.
Property law governs ownership and possession. Real property, sometimes called ‘real estate’, refers to ownership of land and things attached to it. Personal property, refers to everything else; movable objects, such as computers, cars, jewelry 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, licenses, 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. Possession may be nine tenths of the law, but not all.
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. 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.
A corollary of the rule of law is the existence of a legal profession sufficiently autonomous to invoke the authority of the independent judiciary; the right to assistance of an advocate in a court proceeding emanates from this corollary – in England the function of barrister or advocate is distinguished from legal counselor (solicitor).
As the European Court of Human Rights has stated, the law should be adequately accessible to everyone and people should be able to foresee how the law affects them.
In order to maintain professionalism, the practice of law is typically overseen by either a government or independent regulating body such as a bar association, bar council or law society. Modern lawyers achieve distinct professional identity through specified legal procedures (e.g. successfully passing a qualifying examination), are required by law to have a special qualification (a legal education earning the student a Bachelor of Laws, a Bachelor of Civil Law or a Juris Doctor degree), and are constituted in office by legal forms of appointment (being admitted to the bar).
Most Muslim countries have developed similar rules about legal education and the legal profession, but some still allow lawyers with training in traditional Islamic law to practice law before personal status law courts.
In China and other developing countries there are not sufficient professionally-trained people to staff the existing judicial systems, and, accordingly, formal standards are more relaxed.
Once accredited, a lawyer will often work in a law firm, in a chambers as a sole practitioner, in a government post or in a private corporation as an internal counsel. In addition a lawyer may become a legal researcher who provides on-demand legal research through a library, a commercial service or freelance work. Many people trained in law put their skills to use outside the legal field entirely.
Significant to the practice of law in the common law tradition is the legal research to determine the current state of the law. This usually entails exploring case-law reports, legal periodicals and legislation. Law practice also involves drafting documents such as court pleadings, persuasive briefs, contracts, or wills and trusts. Negotiation and dispute resolution skills (including ADR techniques) are also important to legal practice, depending on the field.
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