Legal is a system of rules created and enforced through social or governmental institutions to regulate behavior. Law is a system that regulates and ensures that individuals or communities obey the will of the state. State-enforceable laws may be made by collective legislatures or by single legislators, resulting in legislation, by the executive through decisions and regulations, or established by judges by precedent, usually within the jurisdiction of general law. Private individuals may enter into legally binding contracts, including arbitration agreements which may choose to accept alternative arbitration to the regular court proceedings. The formation of the law itself may be influenced by the constitution, written or tacit, and the rights encoded therein. These laws shape politics, economics, history and society in various ways and serve as mediators of relationships between people.
A general distinction may be made between (a) the jurisdiction of civil law, in which the legislature or other central body codifies and consolidates their law, and (b) the system of common law, in which a judicial precedent is accepted as a binding law. Historically, religious law has played an important role even in solving secular problems, and is still used in some religious communities. Islamic Sharia Law is the most widely used religious law in the world, and is used as the main legal system in some countries, such as Iran and Saudi Arabia.
Legal adjudication is generally divided into two main areas. The criminal law deals with behaviors that are considered harmful to the social order and where the offending party may be imprisoned or fined. Civil law (not to be confused with the jurisdiction of civil law above) relates to the settlement of lawsuits (disputes) between individuals or organizations.
The law provides a source of scientific inquiry into the history of law, philosophy, economic analysis and sociology. Law also raises important and complex issues of equity, justice and justice.
Video Law
Definitions
Main stream definitions
Many of the definitions of law have been argued for centuries. The Merriam-Webster's Third New International Dictionary defines law as: "Law is a binding practice or community practice, rules or modes of conduct or action that are determined or officially recognized as binding by the ultimate or controlling authority shall be sanctioned (as a decree, decision, text, order, ordinance, law, resolution, rule, judgment, or use) created, acknowledged, or enforced by the controlling authority. "
The Is it possible or desirable to define the law
There have been several attempts to produce a "universally accepted definition of law". In 1972, one source indicated that no definitions could be produced. McCoubrey and White said that the question "what is a law?" does not have a simple answer. Glanville Williams says that the meaning of the word "law" depends on the context in which it is used. He says that, for example, "the early customary law" and "municipal law" are the contexts in which the word "law" has two distinct and irreconcilable meanings. Thurman Arnold said that it is clear that it is impossible to define the word "law" and that it is equally clear that the struggle to define the word should not be abandoned. It is possible to take the view that there is no need to define the word "law" (eg "let's forget about the common things and get down to the cases").
Maps Law
History
The history of law is closely linked to the development of civilization. Ancient Egyptian Law, dating as far back as 3000 BC, contains a civil code that may be split into twelve books. It is based on the concept of Ma'at, characterized by tradition, rhetorical speech, social equality and impartiality. In the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first code of law, which consisted of a casuistic statement ("if... then..."). Around 1760 BC, King Hammurabi developed the Babylonian law further, codifying it and writing it on stone. Hammurabi placed several copies of his legal code throughout the Babylon empire as a stelae, for the whole public to see it; this is known as Codex Hammurabi. The most intact copies of this stela were discovered in the 19th century by British Asherologists, and have since been fully transliterated and translated into various languages, including English, Italian, German, and French.
The Old Testament dates back to 1280 BC and takes the form of moral imperatives as a recommendation for a good society. The small Greek city-state, ancient Athens, from about the 8th century BC was the first society based on the widespread inclusion of its citizens, excluding women and slave classes. However, Athena has no legal science or a single word for "law", relying only on three-way differences between divine laws ( thÃÆ' Â © mis ), human decisions ( nomos ) and custom ( dÃÆ'k? ). But Ancient Greek law contains a major constitutional innovation in the development of democracy.
Roman law was heavily influenced by Greek philosophy, but its detailed rules were developed by professional and highly sophisticated lawyers. Over the centuries between the rise and decline of the Roman Empire, the law was adapted to address the changing social situation and underwent a great codification under Theodosius II and Justinian I. Although the code was replaced by customary law and cases during the Dark Ages, Roman law was rediscovered around the century -11 when medieval law scholars began to examine Roman code and adjust their concepts. Latin legal standards (called brocards) are prepared for guidance. In medieval England, the royal courts developed a body of precedent which later became common law. Legal Traders in Europe are formed so that traders can trade with common practice standards rather than with many aspects of local law being fragmented. The Law Merchant, the forerunner of modern commercial law, emphasizes the freedom to contract and alienate property. When nationalism grew in the 18th and 19th centuries, Legal Traders were incorporated into local laws of the country under the new civil law. The Napoleonic and German Codes became the most influential. In contrast to the common law of England, which consists of major books on legal matters, codes in small books are easy to export and easy to apply by judges. However, today there are signs that civil and common law unite. EU law is codified in the treaty, but evolves through a precedent set by the European Court.
Ancient India and China represent different legal traditions, and historically have an independent school of theory and practice of law. The Arthashastra , probably compiled around 100 AD (though containing older material), and Manusmriti (about 100-300 AD) is a basic treatise in India, and consists of text is considered an authoritative legal guideline. Manu's main philosophy is tolerance and pluralism, and is quoted throughout Southeast Asia. This Hindu tradition, along with Islamic law, was replaced by a common law when India became part of the British Empire. Malaysia, Brunei, Singapore and Hong Kong have also adopted a common law. The East Asian legal tradition reflects a unique blend of secular and religious influences. Japan was the first country to begin to modernize its legal system along the western route, importing parts of France, but most of the German Civil Code. This in part reflects the status of Germany as an increasing force in the late 19th century. Similarly, traditional Chinese law gave way to westernization of the last years of the Qing Dynasty in the form of six private legal codes primarily based on Japanese legal model of Japan. Today the law of Taiwan maintains the closest proximity to the codification of that period, because of the split between Chiang Kai-shek nationalists, who fled there, and communist Mao Zedong who won control of the land in 1949. The current legal infrastructure in the People's Republic of China is very influenced by Soviet Socialist law, which essentially expands administrative laws at the expense of private legal rights. Due to rapid industrialization, today China is undergoing a reform process, at least in economic terms, if not social and political, rights. The new contract code in 1999 represents a shift from administrative dominance. Furthermore, after fifteen years of negotiations, in 2001 China joined the World Trade Organization.
The legal theory
Philosophy
Legal philosophy is generally known as jurisprudence. Normative jurisprudence asks "what should law?", While analytic jurisprudence asks "what is a law?" John Austin's utilitarian answer is that law is "command, supported by the threat of sanctions, of sovereignty, to whom one has obedience". Natural lawyers on the other hand, such as Jean-Jacques Rousseau, argue that the law essentially reflects moral and irreversible laws. The concept of "natural law" arose in ancient Greek philosophy simultaneously and in connection with the idea of ​​justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas, especially his work on the Minutes of the Law.
Hugo Grotius, the founder of a purely rational system of natural law, argues that law arises from social urges - as Aristotle has pointed out - and reason. Immanuel Kant believes that moral necessity requires the law "to be chosen as if they should hold the universal law of nature". Jeremy Bentham and his pupil, Austin, follow David Hume, believing that this links the problem of "is" and what is "supposed". Bentham and Austin argue for legal positivism; that the real law is entirely separate from "morality". Kant was also criticized by Friedrich Nietzche, who rejected the principle of equality, and believed that law stems from the will to power, and can not be labeled "moral" or "immoral".
In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book The Pure Theory of Law. Kelsen believes that although the law is separate from morality, it is endowed with "normativity", which means we must obey it. While the law is a "is" positive statement (eg a fine to reverse on the highway is is EUR500); the law tells us what we "should" do. Thus, any legal system can be hypothesized to have the basic norm ( Grundnorm ) that commands us to obey. Kelsen's main opponent, Carl Schmitt, rejects positivism and the idea of ​​rule of law because he does not accept the superiority of abstract normative principles for concrete political positions and decisions. Therefore, Schmitt advocated exclusion jurisprudence (an emergency), which denied that legal norms could encompass all political experience.
Later in the 20th century, H. L. A. Hart attacked Austin for simplification and Kelsen for his fiction at The Concept of Law. Hart argues law is the rule system, divided into primary (rules of conduct) and the secondary (rules directed to officials to manage the main rules). Secondary rules are subdivided into adjudication rules (to resolve legal disputes), change rules (allowing legislation to be varied) and recognition rules (allowing legislation to be identified as valid). Two Hart students continue the debate: In his book Law's Empire, Ronald Dworkin attacks Hart and positivists for their refusal to treat the law as a moral issue. Dworkin argues that law is an "interpretative concept", which requires judges to find the best and fairest solution to legal disputes, given their constitutional tradition. Joseph Raz, on the other hand, defended the positivist view and criticized Hart's "social thesis" approach in the Legal Authority . Raz argues that law is an authority, which can be purely identified through social sources and without reference to moral reasoning. In his view, any categorization of rules outside of their role as an authoritative instrument in mediation should be left to sociology, not jurisprudence.
Discussion of positive and non-positive law
One of the definitions is that law is a system of rules and guidelines imposed through social institutions to regulate behavior. In Legal Concept Hart argues the law is a "rule system"; Austin says the law is "the order of the ruler, supported by the threat of sanctions"; Dworkin described the law as an "interpretative concept" to achieve justice in his text entitled Law's Empire ; and Raz argues law is the "authority" to mediate the interests of people. Holmes said, "The prophecy of what the court actually does, and nothing more magnificent, is what I mean by law." In his Treatise on Law Aquinas argues that law is a rational ruling on matters of common good that are enacted by anyone responsible for the care of society. This definition has a positivist and naturalist element.
Economic analysis
In the 18th century Adam Smith presented a philosophical foundation to explain the relationship between law and economics. The discipline arose in part due to criticism of unions and US antitrust laws. The most influential advocates, 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 supporters of deregulation and privatization, and are unfriendly to state regulations or what they see as restrictions on free market operations.
The most prominent economic analyst in law is the 1991 Nobel Prize winner Ronald Coase, whose first major article, The Nature of the Firm (1937), argues that the reason for the existence of corporations (corporations, partnerships, etc.) ) is the existence of transaction costs. Individuals who rationally trade through bilateral contracts on the open market until transaction costs mean that using the company to produce goods is more cost-effective. The second article, Social Cost Issues (1960), states that if we live in a world without transaction costs, people will bargain with each other to create the same allocation of resources, regardless of how the court may decide in a property dispute. Coase uses an example of a nuisance case called Sturges v Bridgman , where a noisy boister and a quiet doctor is a neighbor and goes to court to see who should move. Coase says that regardless of whether the judge decides that the sweetener should stop using the machine, or that the doctor should bear it, they can bargain mutually beneficially about who moves that achieve the same resource distribution results. Only the existence of transaction costs can prevent this. So the law must prevent what will happen, and be guided by the most efficient solution. The idea is that laws and regulations are not as important or effective in helping people as lawyers and government planners believe. Coase and others like him want a change of approach, to lay the burden of proof for a positive effect on governments that intervene in the market, by analyzing the cost of action.
Sociology
Sociology of law is a diverse field of study that examines the interaction of law with society and overlaps with jurisprudence, legal philosophy, social theory and more specialized subjects such as criminology. Social construction institutions, social norms, dispute processing and legal culture are key areas for inquiry in this field of knowledge. Legal sociology is sometimes seen as a sub-discipline of sociology, but its relationship to the legal academic discipline is equally strong, and is best seen as a transdisciplinary and multidisciplinary study that focuses on theorizing and empirical study of legal practices and experience as a social phenomenon. In the United States, this field is usually called the study of law and society; in Europe is more often referred to as a socio-legal study. At first, lawyers and legal philosophers were suspicious of the sociology of the law. Kelsen attacked one of its founders, Eugen Ehrlich, who sought to clarify the differences and relationships between positive law, which lawyers learn and apply, and other forms of 'law' or social norms governing daily life, generally preventing conflict from attaining lawyers. and courts. Contemporary research in the sociology of law is closely related to the way law develops beyond the jurisdiction of discrete countries, generated through social interaction in various types of social arenas, and gains the diversity of (often competing or contradictory) sources of authority in communal networks that exist sometimes in the countries of the world. nation state but also increasingly transnational.
Around 1900 Max Weber defined his "scientific" approach to law, identifying "rational forms of law" as a type of domination, not due to personal authority but the authority of abstract norms. The formal legal rationality is the term for the key characteristics of a coherent and computable type of law that is a prerequisite for the development of modern politics and the state of modern bureaucracy. Weber sees this law as evolving with the growth of capitalism. Another prominent sociologist, Durkerheim Durkheim, writes in his classic Workers Division that when society becomes more complex, civil bodies primarily relating to restitution and compensation grow at the expense of criminal law and sanctions criminal. Other famous legal sociologists include Hugo Sinzheimer, Theodor Geiger, Georges Gurvitch and Leon Petra? Ycki in Europe, and William Graham Sumner in the US.
Legal system
In general, the legal system can be divided between civil law and the general legal system. The term "civil law" refers to the legal system should not be equated with "civil law" as a group of legal subjects distinct from criminal or public law. The third type of legal system - accepted by some countries without the separation of church and state - is a religious law, based on the scriptures. The specific system governed by a country is often determined by its history, its relations with other countries, or its compliance with international standards. Sources adopted by jurisdiction as authoritative binding are the defining features of any legal system. But classification is a matter of form rather than substance, because similar rules often apply.
Civil Code
Civil law is the legal system used in most countries in the world today. In civil law, the sources recognized as authoritative are, in particular, legislation - especially codification in the constitution or laws passed by the government - and adat. Codification dates back thousands of years, with one early instance being Babylon Codex Hammurabi . The modern civil law system is basically derived from the legal practice of the sixth-century Eastern Roman Empire whose text was rediscovered by the late medieval West Europe. Roman law during the times of the Roman Republic and Empire was highly procedural, and lacked professional law classes. Instead a lay judge, iudex , was chosen to adjudicate. Decisions are not published in a systematic way, so the case law developed is disguised and almost unknown. Each case must be reinstated from State law, which reflects (theoretically) unimportant judge decisions for future cases in the current civil law system. From 529-534 AD The Byzantine Justinian Emperor I codified and consolidated Roman law up to that point, so that the remaining is one-tenth the text of the law from before. This is known as Corpus Juris Civilis . As a legal historian writes, "Justinian consciously sees a return to the golden age of Roman law and aims to restore it to a peak that had reached three centuries earlier." The Yustinian Code remained in force in the East until the fall of the Byzantine Empire. Western Europe, meanwhile, relied on a mixture of Theodosian Code and German customary law until the Justinian Code was rediscovered in the 11th century, and scholars at the University of Bologna used it to interpret their own laws. Codification of civil law under Roman law, together with some influences from religious law such as canon law, continued to spread throughout Europe until the Enlightenment; then, in the 19th century, both France, with Code Civil, and Germany, with BÃÆ'¼rgerliches Gesetzbuch, modernizing their legal codes. These two codes greatly influenced not only the legal systems of continental European countries (eg Greece), but also the Japanese and Korean legal traditions. Currently, countries that have civil legal systems range from Russia and China to much of Central America and Latin America. With the exception of the Louisiana Civil Code, the United States follows the common law system described below.
General law and equity
In the common law legal system, decisions by courts are explicitly recognized as "laws" on an equal footing with laws adopted through the legislative process and with regulations issued by the executive branch. "The doctrine of precedent", or stare decisis (Latin for "stand by decision") means that a decision by a higher court binds a lower court, and a future decision of the same court, to ensuring that similar cases achieve similar results. In contrast, in the "civil law" system, legislative laws are usually more detailed, and court decisions are shorter and less detailed, as judges or lawyers write only to decide on one case, rather than establishing the reasons that will guide the future. court.
Common law comes from the UK and has been inherited by almost every country once bound to the United Kingdom (except Malta, Scotland, the state of Louisiana and Canada). In medieval Britain, Norman's conquest of law varied-shire-to-shire, based on different tribal customs. The concept of "common law" developed during the reign of Henry II during the late twelfth century, when Henry appoints judges who have the authority to create an institutionalized and united "common" legal system for the state. The next big step in the evolution of the common law came when King John was forced by his barons to sign a document restricting his authority to pass the law. This "great charter" or the Magna Carta of 1215 also demanded that the party of judges of kings conduct their judgments and judgments in "certain places" rather than to provide autocratic justice in places not can be expected about the country. The group of concentrated judges and the elite gained a dominant role in lawmaking under this system, and compared to their counterparts in Europe, the British courts became very centralized. In 1297, for example, while the highest court in France had fifty-one judges, the Common Pleas English Court had five. This powerful and close justice raises a systematic process for developing common law.
However, the system becomes too systematic - too rigid and inflexible. As a result, over time, more and more citizens petitioned the King to rule out the common law, and on behalf of the King, the Chancellor of God gave judgment to do justice in a case. Since the time of Sir Thomas More, the first lawyer appointed Lord Chancellor, a systematic equity body grew alongside the rigid common law, and developed his own Court of Chancery. Initially, equity is often criticized as uncertain, that it varies according to the length of the Chancellor's feet. Over time, equity courts developed strong principles, especially under Lord Eldon. In the 19th century in England, and in 1937 in the US, the two systems were combined.
In developing general law, academic writings always play an important role, both to gather the overall principles of dispersed case law, and to argue for change. William Blackstone, from around 1760, was the first scholar to collect, describe, and teach the common law. But only in describing, scholars seeking explanations and underlying structures are slowly changing the way the law works.
Religious law
Religious law is explicitly based on religious teachings. Examples include Halakha Jews and Sharia Islam - both are translated as "paths to follow" - while Christian canon law also persists in some church communities. Often the religious implications for the law are irreversible, because the word of God can not be changed or ratified by judges or governments. But a comprehensive and detailed legal system generally requires human elaboration. For example, the Qur'an has several laws, and acts as a further source of law through interpretation, Qiyas (analogy), Ijma (consensus) and precedents. It is primarily contained in legal entities and jurisprudence known as Sharia and Fiqh respectively. Another example is the Torah or the Old Testament, in the Pentateuch or the Five Books of Moses. It contains the basic code of Jewish law, chosen by several Israeli communities. The Halakha is a Jewish legal code that summarizes some Talmudic interpretations. However, Israeli law allows litigants to use religious law only if they choose. Canon law is used only by members of the Catholic Church, Eastern Orthodox Church, and Anglican Communion.
Sharia Law
Until the 18th century, Sharia law was practiced throughout the Muslim world in an uncodified form, with the Mecca code of the Ottoman Empire in the nineteenth century becoming the first attempt at codifying elements of Sharia law. Since the mid-1940s, efforts have been made, in state by country, to bring Sharia law more in line with modern conditions and conceptions. In modern times, the legal system in many Muslim countries utilizes the tradition of civil and general law and Islamic law and customs. Constitutions of certain Muslim countries, such as Egypt and Afghanistan, recognize Islam as a state religion, oblige the legislature to comply with Sharia. Saudi Arabia recognizes the Quran as its constitution, and is governed by Islamic law. Iran has also witnessed the repetition of Islamic law into its legal system after 1979. Over the last few decades, one of the fundamental features of the Islamic revival movement has been a call to restore Shari'a, which has generated a great deal of literature and influenced world politics.
Legal institutions
The major legal institutions in industrialized countries are independent courts, representative parliaments, responsible executives, the military and police, bureaucratic organizations, the legal profession and civil society itself. John Locke, in his book The Two Treatises of Government, and Baron de Montesquieu in The Spirit of the Laws, advocates the separation of powers between political, legislative and executive bodies. Their principle is that no one should be able to seize all state power, in contrast to the absolute theory of Thomas Hobbes' Leviathan .
Max Weber and others reshape the idea of ​​state extension. Modern military powers, police and bureaucracy over the daily lives of ordinary citizens poses particular problems for accountability that previous writers such as Locke or Montesquieu are unpredictable. The customs and practices of the legal profession are an important part of people's access to justice, while civil society is a term used to refer to social institutions, communities and partnerships that form the legal basis of law.
Judiciary
The judiciary is a number of judges who mediate disputes to determine the outcome. Most countries have an appeals court system, replying to the highest legal authorities. In the United States, this authority is the Supreme Court; in Australia, the High Court; in the UK, the Supreme Court; in Germany, Bundesverfassungsgericht ; and in France, Cour de Cassation . For most European countries, the European Court of Luxembourg can rule out national law, when EU law is relevant. The European Court of Human Rights in Strasbourg allows members of the Council of Europe to bring in cases relating to prior human rights issues.
Some countries allow their supreme judicial authorities to reject laws they decide to be unconstitutional. For example, in Brown v. Board of Education , the United States Supreme Court overturned many state laws that have established racially-separated schools, finding that the law is incompatible with the Fourteenth Amendment of the US Constitution.
A judiciary is theoretically bound by the constitution, just like all other government bodies. In most countries, judges can only interpret the Constitution and all other laws. But in the countries of common law, where problems are unconstitutional, the judiciary can also make laws under the precedent's doctrine. Britain, Finland and New Zealand affirm the ideals of parliamentary sovereignty, in which unelected courts can not invalidate laws passed by democratic legislatures.
In communist countries, such as China, courts are often regarded as part of the executive, or subject to the legislature; government agencies and actors exert various forms of influence on the judiciary. In Muslim countries, the courts often check whether state laws comply with Sharia: the Supreme Constitutional Court of Egypt may invalidate the law, and in Iran the Guardian Council ensures the compatibility of the law with "Islamic criteria".
Legislative
Prominent examples of legislative bodies are the Houses of Parliament in London, the Congress at Washington D.C., the Bundestag in Berlin, the Duma in Moscow, the Parlamento Italiano in Rome and the Assemblà © à © e nationale in Paris. With the principle of people's representatives the government chooses politicians to carry out their wishes . Although countries like Israel, Greece, Sweden and China are unicameral, most countries are bicameral, meaning they have two separate designated legislative houses.
In 'lower house' politicians are selected to represent a smaller constituency. 'House top' is usually chosen to represent states within the federal system (such as in Australia, Germany or the United States) or different voting configurations in a unitary system (such as in France). In Britain, the upper house is appointed by the government as a review house. One criticism of the bicameral system with the two selected rooms is that the upper and lower houses can only mirror one another. The traditional justification of bicameralism is that the upper room acts as a review house. This can minimize arbitrariness and injustice in government action.
To pass legislation, the majority of legislative members must choose the law (proposed legislation) in each house. Usually there will be some reading and amendments proposed by different political factions. If a country has a deep-rooted constitution, a special majority for constitutional change may be necessary, making changes to the law more difficult. Governments usually lead the process, which can be formed from Members of Parliament (eg England or Germany). However, in a presidential system, the government is usually formed by its appointed executive and cabinet officer (eg the United States or Brazil).
Executive
The executive in the legal system serves as the center of the State's political authority. In parliamentary systems, such as Britain, Italy, Germany, India, and Japan, executives are known as cabinets, and are made up of members of the legislature. The executive is headed by the head of government, whose office holds power under the legislative credentials. Because popular elections have appointed political parties to govern, party leaders can change between elections.
The head of state is separate from the executive, and symbolically enacts the law and acts as the representative of the nation. Examples include the German President (appointed by federal and state legislators), the Queen of England (office of descent), and the President of Austria (elected by popular vote). Another important model is the presidential system, which is found in the United States and in Brazil. In the presidential system, the executive acts as head of state as well as head of government, and has the power to appoint an unelected cabinet. Under the presidential system, the executive branch is separate from an unaccountable legislature.
Although the role of the executive varies from country to country, it will usually propose the majority of legislation, and propose the government agenda. In presidential systems, executives often have the power to veto legislation. Most executives in both systems are responsible for foreign relations, military and police, and bureaucracy. The minister or other official heads the public office of a country, such as the foreign ministry or the ministry of defense. Different executive elections are therefore able to revolutionize the nation-wide approach to government.
Military and police
While military organizations have existed during the government itself, the idea of ​​a standing polity is a relatively modern concept. For example, the criminal justice system traveled in the Middle Ages of England, or assizes, using public trials and executions to inculcate people with fear to maintain control. The first modern police might have been those who were in 17th-century Paris, in Louis XIV's palace, although Paris Police Prefectures claimed they were the first uniformed policemen in the world.
Max Weber famously argues that the state is the one who controls the monopoly over the use of legitimate power. Military and police enforcement at the request of the government or the court. The term country fails to refer to a country that can not implement or enforce policy; their police and military no longer control security and order and society moves into anarchy, lack of government.
Bureaucracy
The etymology of "bureaucracy" comes from the French word for "office" ( bureau ) and Ancient Greek for the word "power" ( kratos ). Like the military and police, government officials and legal entities that make up their bureaucracy run executive directives. One of the earliest references to this concept was made by Baron de Grimm, a German writer living in France. In 1765 he wrote,
The real spirit of law in France is the bureaucracy used by the late Monsieur de Gournay to complain so much; here the office, clerk, secretary, inspector and intendant are not appointed for the public interest, indeed the public interest seems to have been established so that the office may exist.
Cynicism over "official" is still common, and the way civil servants work is usually contrasted with private companies motivated by profits. Even private companies, especially large ones, also have bureaucracy. Negative perceptions of "red tape" in addition, public services such as schools, health care, the police or public transport are seen as important state functions that make public bureaucratic action a locus of government power.
Writing early in the 20th century, Max Weber believes that the definitive features of the developed world have become his bureaucratic support. Weber writes that the typical characteristic of modern bureaucracy is that officials determine their mission, the scope of work is bound by rules, and management consists of top down career professionals, communicating through writing and binding civil service policy with rules.
Legal profession
A corollary of the rule of law is the existence of a fairly autonomous legal profession to appeal to an independent judicial authority; the right to get help from a lawyer in court continues the emanation of these consequences - in the UK the function of lawyers or lawyers is distinguished from legal counsel. As declared by the European Court of Human Rights, the law must be adequately accessible to everyone and people should be able to predict how the law affects them.
To maintain professionalism, legal practice is usually overseen by governments or independent regulatory bodies such as lawyers 'associations, lawyers' councils or law communities. Modern lawyers achieve different professional identities through specific legal procedures (eg successfully passing a qualification exam), required by law to have special qualifications (legal education to obtain students Bachelor of Laws, Bachelor of Civil Law, or Juris Doctor Higher academic degrees may also be pursued Examples include Master of Laws, Master of Legal Studies, Bar Professional Training Course or Doctor of Laws.), And inaugurated at the office by legal agreement forms (accepted at the bar). There are several award titles to signify renowned lawyers, such as Esquire, to show lawyers of greater dignity, and legal Doctors, to show a person obtaining a PhD in Law.
Many Muslim countries have developed similar rules regarding legal education and the legal profession, but some still allow lawyers with training in traditional Islamic law to practice law in private court of law. In China and other developing countries there are not enough professionally trained people to manage the existing judicial system, and, hence, the formal standards are more relaxed.
Once accredited, lawyers will often work in law firms, in rooms as sole practitioners, at government posts or in private companies as internal advisors. In addition, lawyers can become law researchers who provide legal research on demand through libraries, commercial services or freelance jobs. Many people trained in the law put their skills to use outside the legal field completely.
Significant to the practice of law in the tradition of common law is the legal research to determine the current state of law. This usually involves deploying legal case reports, periodic reports and statutory laws. Legal practice also involves the preparation of documents such as court appeals, persuasive directives, contracts, or wills and credentials. Negotiation and dispute resolution skills (including ADR techniques) are also important for legal practice, depending on the field.
Civil society
The concept of the classical republic of "civil society" originated from Hobbes and Locke. Locke sees civil society as people who have "established common law and justice to appeal, with the authority to decide the controversy between them." The German philosopher Georg Wilhelm Friedrich Hegel distinguishes the "state" of "civil society" ( bÃÆ'¼rgerliche Gesellschaft ) in the elements of Right Philosophy .
Hegel believes that civil society and the state are at odds with polar, in the scheme of dialectical history theory. Modern state-civil society dipoles are reproduced in the theories of Alexis de Tocqueville and Karl Marx. Nowadays in civil society post-modern theory is the source of law, with the basis from which people form opinions and lobby for what they believe should be law. As Australian lawyer and author Geoffrey Robertson QC writes on international law,
... one of the modern sources is primarily found in the responses of ordinary men and women, and non-governmental organizations that many support, against the human rights violations they see on television screens in their living rooms.
Freedom of speech, freedom of association and many other individual rights allow people to gather, discuss, criticize, and continue to account for their government, from which the basis of deliberative democracy is formed. The more people involved with, concerned with and being able to change how political power is exercised over their lives, a more acceptable and legitimate law becomes for the people. The best known civil society institutions are economic markets, profit-oriented companies, families, unions, hospitals, universities, schools, charities, debating clubs, non-governmental organizations, neighborhoods, churches and religious associations.
Legal subject
All legal systems deal with the same basic problem, but the jurisdiction categorizes and identifies the legal subject in different ways. The general difference is that between "public law" (a term closely related to the state, and including constitutional, administrative and criminal law), and "private law" (which includes contracts, torts and property). In the civil law system, contracts and torts fall under general law of liability, while the guardianship law is handled under a legal regime or international convention. International law, constitutional and administrative, criminal law, contract, tort, property law and trust are considered "traditional core subjects", although there are many further disciplines.
International law
International law can refer to three things: public international law, private international law or conflict of laws and laws of supranational organizations.
- Public international law concerns the relationship between sovereign states. Sources for the development of public international law are customs, practices and agreements between sovereign states, such as the Geneva Conventions. Public international law can be established by international organizations, such as the United Nations (established after the failure of the League of Nations to prevent World War II), the International Labor Organization, the World Trade Organization, or the International Monetary Fund. Public international law has a special status as law because there are no international police forces, and courts (eg the International Tribunal as the main UN judicial organ) do not have the capacity to punish disobedience. However, some agencies, such as the WTO, have binding arbitration systems and effective dispute resolution supported by trade sanctions.
- Legal conflicts (or "private international law" in a civil law country) which considers the jurisdiction of a legal dispute between private parties to be heard and which jurisdictional laws should be applied. Today, businesses are increasingly able to shift the supply chain of capital and labor across borders, as well as trade with overseas business, making inquiries about which countries have even more urgent jurisdiction. More and more businesses are choosing commercial arbitration under the 1958 New York Convention.
- EU law is the first and, so far, only examples of internationally accepted legal systems other than the United Nations and World Trade Organization. Given the growing trend of global economic integration, many regional agreements - notably the United States of South American Unity - are on track to follow the same model. In the EU, sovereign states have accumulated their authority in the judicial system and political institutions. These institutions are allowed to have the ability to enforce legal norms either against or for member states and citizens in a way that is not possible through public international law. As the European Court of the 1960s said, the EU law is "a new legal order of international law" for the mutual social and economic benefits of member states.
Constitution and administrative law
Constitutional and administrative law regulates state affairs. Constitutional law concerns both the relationship between the executive, legislative and judicial and human rights or individual civil liberties against the state. Most jurisdictions, such as the United States and France, have a single constitution codified with the right legislation. Some, like the UK, do not have such a document. "Constitution" is only the law that constitutes the body politics, of the law, the law of the matter and convention. A case named Entick v Carrington illustrates a constitutional principle derived from common law. Entick's house was ransacked and searched by Sheriff Carrington. When Mr Entick complained in court, Sheriff Carrington argued that a warrant from a government minister, Earl of Halifax, was a legitimate authority. However, there is no provision of written law or court authority. The eminent judge, Lord Camden, stated that,
The tremendous ending, in which people enter into society, is to secure their property. The right is preserved sacred and incurable in all instances, where it has not been taken or summarized by some public law for the good of the whole... If there is no reason to be found or produced, the silence of the book is the authority of the defendant, and the plaintiff must have an appraisal.
The fundamental constitutional principle, inspired by John Locke, states that an individual can do anything except that is prohibited by law, and the state can do nothing except what is passed by law. Administrative law is the primary method for people to hold accountable to state bodies. People may sue institutions, local councils, public services, or government ministries for review of actions or decisions, to ensure that they comply with the law, and that government entities observe the necessary procedures. The first specialist administrative tribunal was the Conseil d'ÃÆ'â € tat formed in 1799, when Napoleon took power in France.
Criminal Law
The criminal law, also known as criminal law, deals with crime and punishment. Thus regulating the definitions and penalties for violations that are found to have a devastating social impact but, in itself, does not make a moral judgment on the offender or imposes restrictions on a society that physically prevents people from committing crimes in the first place. Investigation, apprehending, charging, and attempting suspect offenders are governed by criminal procedure law. The case of a crime paradigm lies in evidence, without a doubt, that one is guilty of two things. First, the defendant must take action considered by society as criminal, or actus reus (guilty). Second, the defendant must have the necessary evil intent to commit a crime, or mens rea (the guilty mind). However, for a crime called "strict obligation", a actus reus is sufficient. The criminal system of civil law traditions distinguishes between intentions in the broadest sense ( dolus directus and dolus eventualis ), and omissions. Negligence does not assume criminal liability unless a particular crime regulates its punishment.
Examples of crimes include murder, assault, fraud, and theft. In exceptional circumstances, defense may apply to certain acts, such as killing in self-defense, or pleading insanity. Another example is in the case of the 19th century England Rv Dudley and Stephens , who tested the defense of "necessity". The Mignonette , sailed from Southampton to Sydney, drowned. Three crew members and Richard Parker, a 17-year-old cabin boy, were stranded on a raft. They were starving and the boy was almost dead. Driven to extreme hunger, the crew kills and eats the cabin boy. The crew survived and rescued, but were tried for murder. They thought it necessary to kill the cabin boys to preserve their own lives. Lord Coleridge, expressed his enormous disapproval, decided, "to defend a person's life is generally a duty, but it may be the simplest and most high-handed task to sacrifice it." The men were sentenced to hang, but public opinion strongly supported the right of the crew to preserve their own lives. In the end, Crown changed their sentence to six months in jail.
Violation of criminal law is seen as a violation against not only individual victims, but also communities. The state, usually with the help of the police, takes the lead in prosecution, which is why in cases of common law states referred to as " The People v..." or " R (for Rex or Regina) v... ". Also, a layman's jury is often used to determine the defendant's faults at points of fact: the jury can not change the rule of law. Some developed countries still condemn the death penalty for criminal activity, but normal penalties for crime are imprisonment, fines, state control (such as probation), or community service. Modern criminal law has been heavily influenced by the social sciences, especially in terms of punishment, legal research, legislation, and rehabilitation. In the international field, 111 countries are members of the International Criminal Court, established to prosecute persons for crimes against humanity.
Contract law
The contract law concerns promises that can be enforced, and can be concluded in the Latin phrase pacta sunt servanda (agreement must be maintained). In the jurisdiction of common law, three key elements for contracting are required: supply and acceptance, consideration and intent to create legal relationships. In a Carlill v Carbolic Smoke Ball Company a medical firm advertises that its new magic drug, smokeball, will heal people flu, and if not, buyers will get Ã,  £ 100. Many people sue for  £ 100 when the drug is not working. Fearing bankruptcy, Carbolic believes the ad should not be considered a serious and legally binding offer. It was an invitation to treat, just plain gimmick. But the Court of Appeal declared that to a reasonable person, Carbolic had made a serious offer, emphasized by their convincing statement, "Ã,  £ 1000 deposited". Equally, people have given good consideration to the offer by going to "different inconveniences" of using the wrong product. "Read the ad how you will be, and turn it the way you want," said Lord Justice Lindley, "here is a different promise expressed in indistinguishable language".
"Consideration" points to the fact that all parties to the contract have exchanged something of value. Some common legal systems, including Australia, move away from the notion of consideration as a requirement. The idea of ​​estoppel or culpa in contrahendo , can be used to create obligations during pre-contract negotiations. In the jurisdiction of civil law, consideration is not required to bind the contract. In France, ordinary contracts are said to be based only on "mind-set" or "consent of testament". Germany has a special approach to contracts, which are related to property law. Their 'abstraction principle' ( Abstraktionsprinzip ) means that the personal obligations of the contract are formed separately from the title of the given property. When the contract does not apply for several reasons (eg, the car buyer is so drunk that he does not have legal capacity for the contract), the contractual obligation to pay can be canceled separately from the title of the ownership of the car. Unfair enrichment law, not contract law, is then used to restore ownership to the rightful owner.
Tort Law
Torts, sometimes called delict, are a civil error. To act with difficulty, a person must violate obligations to others, or violate some pre-existing legal rights. A simple example might accidentally hit someone with a cricket ball. Under the law of negligence, the most common form of tort, the injured party has the potential to claim compensation for their injuries from the responsible party. The principles of neglect are illustrated by Donoghue v Stevenson . A friend of Mrs Donoghue ordered a bottle of ginger beer (meant for Mrs Donoghue's consumption) at a cafe in Paisley. After half of it, Mrs. Donoghue poured the rest into the glass. Remnants of a decaying snail float out. He claimed to be in shock, fell ill with gastroenteritis and sued the manufacturer for carelessly allowing the drink to be contaminated. The House of Lords decided that the factory was responsible for Mrs Donoghue's illness. Lord Atkin took a clear moral approach, and said,
The responsibility for negligence... is undoubtedly based on the general general sentiments of the moral mistakes the offender pays... The rule that you have to love your neighbor becomes law, you must not hurt your neighbor; and lawyer questions, Who's my neighbor? receive a limited reply. You should take reasonable precautions to avoid any acts or omissions that you may feel will tend to hurt your neighbor.
This becomes the basis for the four principles of negligence: (1) Mr Stevenson owes Mrs. Donoghue the duty of care to provide safe drinks (2) he violates his obligations (3) danger will not occur but for offenses and (4) his actions are the direct cause of the danger he suffered. Another example of tort is probably the neighbor who makes the sound too loud with the engine on his property. Under the claims of sound interruption can be stopped. Torts can also involve deliberate action, such as assault, battery or violation. A better known disturbance is defamation, which occurs, for example, when newspapers make unsupported allegations that undermine a politician's reputation. More notable are the economic lawsuits, which form the basis of labor law in some countries by making unions responsible for strikes, when legislation does not provide immunity.
Property law
Property law regulates ownership and ownership. Real property, sometimes called 'real estate', refers to the ownership of the land and the things attached to it. Private property, referring to everything else; moving objects, such as computers, cars, jewelry or intangible rights, such as stocks and shares. The right in the brake is the right to a particular property, in contrast to the right in personam which enables compensation for loss, but not certain things back. Land laws form the basis for most types of property law, and are the most complex. It concerns mortgages, lease agreements, licenses, agreements, easements and legal systems for land registration. Regulations on the use of personal property fall under intellectual property, corporate law, trust and commercial law. The basic case example of most property laws is Armory v Delamirie [1722]. A chimney sweeper found gems studded with precious stones. He took it to a goldsmith to have it appreciated. The goldsmith's goldman saw him, secretly pulled out the stones, told the boy that it cost three and a half dollars and he would buy it. The boy said that he would prefer the gem back, so the disciple gave it to him, but without the stone. The boy sued the goldsmith for his apprenticeship to deceive him. Mr. Supreme Court Justice Pratt decided that although the boy could not be said to possess the gem, he should be considered a legitimate guardian ("guard seeker") until the original owner was found. Even pupils and boys have ownership rights in gems (technical concepts, which means evidence that something can belong to a person), but the interest of the child's ownership is considered better, because it can be shown to be the first time. Ownership may be nine-tenths of the law, but not all.
This case is used to support the view of property in the jurisdiction of common law, that the person who can show the best claim on a property, against the disputing party, is the owner. In contrast, the classical civil law approach to property, put forward by Friedrich Carl von Savigny, is that it is a good right to the world. Obligations, such as contracts and torts, are conceptualized as the rights of both individuals. The idea of ​​property raises many more philosophical and political issues. Locke argues that "our life, liberty, and plantation" belong to us because we have our bodies and mix our energy with our environment.
Equality and trust
Equity is a set of rules developed in the UK separately from "common law". Common law is administered by judges and lawyers. The Lord Chancellor on the other hand, as a guardian of the King's conscience, can rule out the judge's law if he thinks it's fair to do so. This means that equities come to operate more through principles than rigid rules. For example, while both the common law and civil law systems allow people to share ownership from control over one part of the property, justice allows this through an arrangement known as 'trust'. 'Mastery' of property property, while ownership of 'profitable' (or 'equivalent') trust property is held by persons known as 'beneficiaries'. Supervisors owe obligations to their beneficiaries to take care of the property entrusted properly. In the early case of Keech v Sandford a child inherited a lease on the market in Romford, London. Mr. Sandford is entrusted to take care of this property until the child is an adult. But before that, the lease expired. The landlord (apparently) told Mr. Sandford that he did not want the boy to get a new lease. Yet the landlord was happy (apparently) to give Mr. Sandford a rent opportunity instead. Mr. Sandford picked it up. When the child (now Mr. Keech) grew up, he sued Mr. Sandford for the profit he earned by getting a market rent. Mr. Sandford is meant to be trusted, but he puts himself in a position of conflict of interest. The Lord Chancellor, Lord King, agrees and orders Sandford to cut his profits. He wrote,
I am very well looked after, if a wali, on refusal to renew, may have rent for himself some trust-estates will be renewed... It may seem very difficult, that the guardians are the only people of all humanity who may not have rent; but it is appropriate that the rules should be thoroughly pursued and not at all relaxed.
Of course, Lord King LC worries that guardians can take advantage of opportunities to use property trusts for themselves rather than take care of them. Business speculators who use trusts recently caused a stock market crash. The strict duties for the guardians make their way into corporate law and apply to the director and chief executive officer. Another example of a trustee's job is to invest the property wisely or sell it. This is especially true for pensions, the most important form of trust, where investors are the guardians for community savings until retirement. But trust can also be arranged for charitable purposes, the famous example is the British Museum or the Rockefeller Foundation.
Further discipline
The law spread far beyond the core subjects to almost every area of ​​life. Three categories are presented for convenience, though the subject is interwoven and overlapping.
- Law and society
- The Employment Act is the study of tripartite industrial relations between workers, employers and unions. This involves arranging collective bargaining, and the right to strike. Employment law of individuals
Source of the article : Wikipedia
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