Dr Khalil Hussein











Introduction to Law

Legal theory
Legal systems
Legal subjects
Legal institutions








Dar Al-Manhal Alobnanee
2008







INTRODUCTION
Law, body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behavior of its members. The nature and functions of law have varied throughout history. In modern societies, some authorized body such as a legislature or a court makes the law. It is backed by the coercive power of the state, which enforces the law by means of appropriate penalties or remedies.
Formal legal rules and actions are usually distinguished from other means of social control and guides for behavior such as mores, morality, public opinion, and custom or tradition. Of course, a lawmaker may respond to public opinion or other pressures, and a formal law may prohibit what is morally unacceptable.
Law serves a variety of functions . Laws against crimes, for example, help to maintain a peaceful, orderly, relatively stable society. Courts contribute to social stability by resolving disputes in a civilized fashion. Property and contract laws facilitate business activities and private planning. Laws limiting the powers of government help to provide some degree of freedom that would not otherwise be possible. Law has also been used as a mechanism for social change; for instance, at various times laws have been passed to inhibit social discrimination and to improve the quality of individual life in matters of health, education, and welfare.
Some experts believe the popular view of law overemphasizes its formal, coercive aspects. They point out that if a custom or norm is assured of judicial backing, it is, for practical purposes, law. On the other hand, a statute that is neither obeyed nor enforced is empty law. Social attitudes toward the formal law are a significant part of the law in process.
Law is not completely a matter of human enactment; it also includes natural law. The best-known version of this view, that God's law is supreme, has had considerable influence in the United States and other Western societies. The civil rights movement, for example, was at least partially inspired by the belief in natural law. Such a belief seems implicit in the view that law should serve to promote human dignity, as for instance by the enforcement of equal rights for all. Muslim societies also embrace a kind of natural law, which is closely linked to the religion of Islam.
DEVELOPMENT OF LAW
Law develops as society evolves . Historically, the simplest societies were tribal. The members of the tribe were bonded together initially by kinship and worship of the same gods. Even in the absence of courts and legislature there was law-a blend of custom, morality, religion, and magic. The visible authority was the ruler, or chief; the ultimate authorities were believed to be the gods whose will was revealed in the forces of nature and in the revelations of the tribal head or the priests. Wrongs against the tribe, such as sacrilege or breach of tribal custom, were met with group sanctions including ridicule and hostility, and, the tribe members thought, with the wrath of the gods. The gods were appeased in ritualistic ceremonies ending perhaps in sacrifice or expulsion of the wrongdoer. Wrongs against individuals, such as murder, theft, adultery, or failure to repay a debt, were avenged by the family of the victim, often in actions against the family of the wrongdoer. Revenge of this kind was based on tribal custom, a major component of early law.
Tribal society gradually evolved into territorial confederations. Governmental structures emerged, and modern law began to take shape. The most significant historical example is Roman law, which influenced most of the legal systems of the world. In the 8th century BC the law of Rome was still largely a blend of custom and interpretation by magistrates of the will of the gods. The magistrates later lost their legitimacy because of gross discrimination against the lower (plebeian) class. The threat of revolution led to one of the most significant developments in the history of law: the Twelve Tables of Rome, which were engraved on bronze tablets in the 5th century BC (Twelve Tables). They were largely a declaration of existing custom concerning such matters as property, payment of debts, and appropriate compensation or other remedies for damage to persons. The Twelve Tables serve as a historical basis for the widespread modern belief that fairness in law demands that it be in written form. These tables and their Roman successors, including the Justinian Code, led to civil-law codes that provide the main source of law in much of modern Europe, South America, and elsewhere. See Civil Law.
The common-law systems of England, and later of the U.S. , developed in a different manner. Before the Norman Conquest (1066), England was a loose confederation of societies, the laws of which were largely tribal and local. The Anglo-Norman rulers created a system of centralized courts that operated under a single set of laws that superseded the rules laid down by earlier societies. This legal system, known as the common law of England, began with common customs, but over time it involved the courts in lawmaking that was responsive to changes in society.
Modern legislatures and administrative agencies produce a much greater quantity of formal law, but the judiciary remains very important because of the continued vitality of the common-law approach even in matters of constitutional and statutory interpretations. Increasingly in civil-law countries, the subtleties of judicial interpretation and the weight of judicial precedents are recognized as involving the courts in significant aspects of lawmaking.
SUBSTANTIVE AND PROCEDURAL LAW
In broad terms, substantive law defines the rights and duties of persons ; procedural law defines and deals with procedures for enforcing those rights and duties. Substantive law determines a wide variety of matters—for example, what is required to form a contract, what the difference is between larceny and robbery, when one is entitled to compensation for an injury, and so on. The rules of procedure and jurisdiction determine the court or administrative agency that may handle a claim or dispute; the form of the trial, hearing, or appeal; the time limits involved; and so on. Related rules also cover the kinds of evidence that may be presented. Such rules are more limiting in trial courts than in administrative agencies. The fine points of procedural law are considerable, but they are generally thought to be indispensable to whatever efficiency and fairness law may have.
PUBLIC LAW
Public law concerns the relationships within government and those between governments and individuals . Because the Roman codes were almost entirely limited to the private area, public law is usually not codified. In civil-law countries, separate administrative courts adjudicate claims and disputes between the various branches of government and citizens, and many lawyers specialize in public law. In France, Germany, and Italy, still other courts handle constitutional issues.
Public law is not quite so clearly demarcated in the United Kingdom and the U.S. Under the common-law approach the same courts handle public and private litigation. Because the United Kingdom has no written constitution, basic principles pertaining to government powers and limits and to fundamental individual rights are found in acts of Parliament, judicial opinions, and tradition. The U.S., on the other hand, has a distinct body of constitutional law.
The development of administrative law is a comparatively recent occurrence. Numerous federal and state administrative agencies now make rules that reach into all manner of activities, including licensing, regulation of trades and professions, protection of health, and promotion of welfare. Their powers emanate from legislation, and their rules are reviewable by the courts.
U.S. constitutional law is the most extensive and pervasive of any country in the world. It is embodied in the Constitution and in the opinions of the U.S. Supreme Court rendered over time. Through its power of judicial review, the Supreme Court may invalidate any legislation or other governmental actions that it finds to be in violation of the Constitution. Constitutional courts in some civil-law countries have similar powers. In the United Kingdom no equivalent judicial power exists, and Parliament is supreme. In totalitarian nations, constitutional limits on legislative power are generally a matter of political determination.
The U.S. Constitution allocates power within the federal government and between the federal and state governments. The first ten amendments (the Bill of Rights) and subsequent amendments define fundamental individual rights by placing limits on the powers of government at all levels. Through its powers of judicial review and interpretation, the Supreme Court has played a remarkable role in facilitating the growth of national power and influence by means of decisions about acts of Congress and federal administrative law. The Court has, for the most part, acted extensively to invalidate and inhibit discriminatory legislation and to adjust the relative distribution of government-connected services and revenue so as to ultimately provide for more democratic social relations. The Court, however, is frequently the center of much controversy because of widely varying interpretations about its role and the nature of constitutional law.
Laws concerning taxation and the regulation of business are in the public area, as is criminal law, which involves the exercise of governmental power by way of enforcement and punishment. Historically, criminal law in Britain included crimes defined by the courts. In the U.S. crimes are defined by statute, thus satisfying constitutional notions of due process. The public-law nature of the area is further emphasized by other constitutional protections such as the right of the accused to remain silent and the right to effective counsel. Criminal law not only promotes security and order but also reinforces moral norms. Debate has been continuous regarding the legitimacy of government intervention in areas where moral attitudes are in significant conflict, such as in matters of sexual practices, pornography, birth control, and euthanasia.
PRIVATE LAW
Private law involves the various relationships that people have with one another and the rules that determine their legal rights and duties among themselves . The area is concerned with rules and principles pertaining to private ownership and use of property, contracts between individuals, family relationships, and redress by way of compensation for harm inflicted on one person by another. Historically, government involvement was usually minimal. Private law has also operated to provide general guidelines and security in private arrangements and interactions in ways that are complementary to morality and custom but that are not necessarily enforceable in a court of law, such as non contractual promises and agreements within an association of private individuals.
The relative significance of purely private law has decreased in modern times. Public law dominates in government-controlled societies; democratic societies increasingly have a mix of public and private law. The private sphere includes individuals and a vast array of groups, associations, organizations, and special legal entities such as corporations. They compete with one another and with government for control of resources, wealth, power, and the communication of ideas and values. Special fields of law, such as labor law, facilitate and control this competition. Much of such law is in the commercial and corporate areas. The formerly purely private law of property and contracts, for example, is now overlaid with legislation, regulations, and judicial decisions reflecting the competition. The public law of taxation has significant impact on the whole private sphere. Courts have increasingly regarded resolution of seemingly private disputes as vehicles for response to changing social conditions and values-especially in the U.S. Thus, manufacturers have experienced an expansion of liability for physical injuries caused by defects in their products. The mechanism of insurance allows manufacturers to spread such costs across the general consuming public.

Chapter 0ne
History and Philosophy of law

The history of law is closely connected to the development of civilizations. Ancient Egyptian law, dating as far back as 3000 BC, had a civil code that was probably broken into twelve books. It was based on the concept of Ma'at, characterized by tradition, rhetorical speech, social equality and impartiality. Around 1760 BC under King Hammurabi, ancient Babylonian law was codified and put in stone for the public to see in the marketplace; this became known as the Codex Hammurabi. But like Egyptian law, which is pieced together by historians from records of litigation, few sources remain and much has been lost over time. The influence of these earlier laws on later civilizations was small. The Torah from the Old Testament is probably the oldest body of law still relevant for modern legal systems, dating back to 1280 BC. It takes the form of moral imperatives, like the Ten Commandments and the Noahide Laws, as recommendations for a good society. Ancient Athens, the small Greek city-state, was the first society based on broad inclusion of the citizenry, excluding women and the slave class. Athens had no legal science, and Ancient Greek has no word for "law" as an abstract concept. Yet Ancient Greek law contained major constitutional innovations in the development of democracy.
Roman law was heavily influenced by Greek teachings It forms the bridge to the modern legal world, over the centuries between the rise and decline of the Roman Empire. Roman law underwent major codification in the Corpus Juris Civilis of Emperor Justinian I. It was lost through the Dark Ages, but rediscovered around the 11th century. Mediæval legal scholars began researching the Roman codes and using their concepts. In mediæval England, the King's powerful judges began to develop a body of precedent, which became the common law. But also, a Europe-wide Lex Mercatoria was formed, so that merchants could trade using familiar standards, rather than the many splintered types of local law. The Lex Mercatoria, a precursor to modern commercial law, emphasized the freedom of contract and alienability of property. 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. As opposed to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and for judges to apply. However, today there are signs that civil and common law are converging. European Union law is codified in treaties, but develops through the precedent laid down by the European Court of Justice.
The Constitution of India is the longest written constitution for a country, containing 444 articles, 12 schedules, numerous amendments and 117,369 words.
Ancient India and China represent distinct traditions of law, and had historically independent schools of legal theory and practice. The Arthashastra, dating from 400 BC, and the Manusmriti, from 100 AD, were influential treatises in India, texts that were considered authoritative legal guidance. Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia. But this Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire. 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. Japan was the first country to begin modernizing its legal system along western lines, by importing bits of the French, but mostly the German Civil Code. 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. 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. Today, however, because of rapid industrialisation China has been reforming, at least in terms of economic (if not social and political) rights. A new contract code in 1999 represented a turn away from administrative domination. Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organization.
Philosophy of law
The philosophy of law is known as jurisprudence. Normative jurisprudence is essentially political philosophy and asks "what should law be?". Analytic jurisprudence, on the other hand, is a distinctive field which asks "what is law?". An early famous philosopher of law was John Austin, a student of Jeremy Bentham and first chair of law at the new University of London from 1829. 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". This approach was long accepted, especially as an alternative to natural law theory. Natural lawyers, such as Jean-Jacques Rousseau, argue that human law reflects essentially moral and unchangeable laws of nature. Immanuel Kant, for instance, believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature". Austin and Bentham, following David Hume, thought this conflated what "is" and what "ought to be" the case. They believed in law's positivism, that real law is entirely separate from "morality". Kant was also criticized by Friedrich Nietzsche, who believed that law emanates from The Will to Power and cannot be labeled as "moral" or "immoral". Thus, Nietzsche criticized the principle of equality, and believed that law should be committed to freedom to engage in will to power.
In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law. Kelsen believed that though law is separate from morality, it is endowed with "normatively", meaning we ought to obey it. Whilst laws are positive "is" statements, law tells us what we "should" do (i.e. not drive backwards). So every legal system can be hypothesized to have a basic norm (Grundnorm) telling us we should obey the law. Carl Schmitt, Kelsen's major intellectual opponent, rejected 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. Therefore, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could encompass of all political experience.
Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fictions in The Concept of Law. As the chair of jurisprudence at Oxford University, Hart argued law is a "system of rules". Rules, said Hart, are divided into primary rules (rules of conduct) and secondary rules (rules addressed to officials to administer primary rules). Secondary rules are 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 have continued the debate since. Ronald Dworkin was his successor in the Chair of Jurisprudence at Oxford and his greatest critic. In his book Law's Empire, Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an "interpretive concept", 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, has defended the positivist outlook and even criticised Hart's 'soft social thesis' approach in The Authority of Law. Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorization of rules beyond their role as authoritative dispute mediation is best left to sociology, rather than jurisprudence.

Chapter Two
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal philosophers, hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. As jurisprudence has developed, there are three main aspects with which scholarly writing engages:
• Natural law is the idea that there are unchangeable laws of nature which govern us, and that our institutions should try to match this natural law.
• Analytic jurisprudence asks questions like, "What is law?" "What are the criteria for legal validity?" or "What is the relationship between law and morality?" and other such questions that legal philosophers may engage.
• Normative jurisprudence asks what law should be like. It overlaps with moral and political philosophy, and includes questions of whether we should obey the law, on what grounds law-breakers might properly be punished, the proper uses and limits of regulation.
Modern jurisprudence and philosophy of law is dominated today primarily by Western academics. The ideas of the Western legal tradition have become so pervasive throughout the world that it is tempting to see them as universal. Historically, however, many philosophers from other traditions have discussed the same questions, from Islamic scholars to the ancient Greeks.
Etymology
The Latin word juris is the genitive form of jus meaning "law." So, juris means "of law" or "legal."
Prudentia, meaning "knowledge" in Latin, translates directly to English as "prudence." The native English word is "wisdom," which also originally meant "knowledge."
"Prudence" means caution, cautiousness, care, carefulness. Manoj Mashalkar, Ph.D. Scholar.
History of jurisprudence
Jurisprudence already had this meaning in Ancient Rome, even if at its origins the discipline was a monopoly of the College of Pontiffs, which detained an exclusive power of judgment on facts, being the only experts (periti) in the jus of traditional law (mos maiorum, a body of oral laws and customs verbally transmitted "by father to son"). Pontiffs indirectly created a body of laws by their pronunciations (sententiae) on single concrete (judicial) cases .
Their sentences were supposed to be simple interpretations of the traditional customs, but effectively it was an activity that, apart from formally reconsidering for each case what precisely was traditionally in the legal habits, soon turned also to a more equitative interpretation, coherently adapting the law to the newer social instances. The law was then implemented with new evaluative Institutions (legal concepts), while remaining in the traditional scheme. Pontiffs were replaced in 3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of competence or experience.
Under the Roman Republic, schools of law were created, and the activity constantly became more academic. In the age from the early Roman Empire to the 3rd century, a relevant literature was produced by some notable groups including the Proculians and Sabinians. The degree of scientific depth of the studies was unprecedented in ancient times and reached still unrivalled peaks of skill. It is about this activity that it has been said that Romans had developed an art out of the law.
After the 3rd century, Juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Byzantine Empire (5th century) that legal studies were once again undertaken in depth, and it is from this cultural movement that Justinian's Corpus Juris Civilis was born.
Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarized by the maxim an unjust law is not a true law, in which 'unjust' is defined as contrary to natural law. Natural law is closely associated with morality and, in historically influential versions, with the intentions of God. To oversimplify its concepts somewhat, natural law theory attempts to identify a moral compass to guide the lawmaking power of the state. Notions of an objective moral order, external to human legal systems, underlie natural law. What is right or wrong can vary according to the interests one is focused upon. Natural law is sometimes identified with the slogan that "an unjust law is no law at all", but as John Finnis, the most important of modern natural lawyers has argued, this slogan is a poor guide to the classical Thomist position natural law
Aristotle
Aristotle is often said to be the father of natural law. Like his philosophical forefathers, Socrates and Plato, Aristotle posited the existence of natural justice or natural right. His association with natural law is due largely to the interpretation given to him by Thomas Aquinas. This was based on Aquinas' conflation of natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics (Book IV of the Eudemian Ethics). Aquinas' influence was such as to affect a number of early translations of these passages, though more recent translations render them more literally.
Aristotle notes that natural justice is a species of political justice, viz. the scheme of distributive and corrective justice that would be established under the best political community; were this to take the form of law, this could be called a natural law, though Aristotle does not discuss this and suggests in the Politics that the best regime may not rule by law at all.
The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature.[7] The context of this remark, however, suggests only that Aristotle advised that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of ones' own city was averse to the case being made, not that there actually was such a law; Aristotle, moreover, considered two of the three candidates for a universally valid, natural law provided in this passage to be wrong. Aristotle's theoretical paternity of the natural law tradition is consequently disputed.
Sharia
Sharia refers to the body of Islamic law. The term means "way" or "path"; it is the legal framework within which public and some private aspects of life are regulated for those living in a legal system based on Muslim principles of jurisprudence. Fiqh is the term for Islamic jurisprudence, made up of the rulings of Islamic jurists. A component of Islamic studies, Fiqh expounds the methodology by which Islamic law is derived from primary and secondary sources.
Mainstream Islam distinguish fiqh, which means understanding details and inferences drawn by scholars, from sharia, which refers to principles that lie behind the fiqh. Scholars hope that fiqh and sharia are in harmony in any given case, but they cannot be sure.
Thomas Aquinas
Saint Thomas Aquinas (1225 –1274) was a philosopher and theologian in the scholastic tradition, known as Doctor Angelicus, Doctor Universalis. He is the foremost classical proponent of natural theology, and the father of the Thomistic school of philosophy, which was long the primary philosophical approach of the Roman Catholic Church. The work for which he is best-known is the Summa Theologica. One of the thirty-three Doctors of the Church, he is considered by many Catholics to be the Church's greatest theologian. Consequently, many institutions of learning have been named after him.
Aquinas distinguished four kinds of law. These are the eternal, natural, human, and divine law. Eternal law is the decree of God which governs all creation. Natural law is the human "participation" in the eternal law and is discovered by reason.] Natural law, of course, is based on "first principles":
. . . this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this.
The desire to live and to procreate are counted by Aquinas among those basic (natural) human values on which all human values are based. Human law is positive law: the natural law applied by governments to societies. Divine law is the specially revealed law in the scriptures.
Thomas Hobbes
In his treatise Leviathan, (1649), Hobbes expresses a view of natural law as a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may best be preserved. Hobbes was a social contractarian and believed that the law gained peoples' tacit consent. He believed that society was formed from a state of nature to protect people from the state of war between mankind that exists otherwise. Life is, without an ordered society, "solitary, poore, nasty, brutish and short". It is commonly commented that Hobbes' views about the core of human nature were influenced by his times. The English Civil War and the Cromwellian dictatorship had taken place, and he felt absolute authority vested in a monarch, whose subjects obeyed the law, was the basis of a civilized society
Lon Fuller
Writing after World War II, Lon L. Fuller notably emphasized that the law must meet certain formal requirements (such as being impartial and publicly knowable). To the extent that an institutional system of social control falls short of these requirements, Fuller argues, we are less inclined to recognise it as a system of law, or to give it our respect. Thus, law has an internal morality that goes beyond the social rules by which valid laws are made. Fuller and Hart were colleagues at Oxford University. One of the disagreements between Fuller, a natural lawyer, and Hart, a positivist, was whether Nazi law was so bad that it could no longer be considered law.
Analytic jurisprudence:
Analytic jurisprudence is using a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law's fusing of what law is and what it ought to be. David Hume famously argued in A Treatise of Human Nature that people invariably slip between describing that the world is a certain way to saying therefore we ought to conclude on a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So analyzing and clarifying the way the world is must be treated as a strictly separate question to normative and evaluative ought questions.
The most important questions of analytic jurisprudence are: "What are laws?"; "What is the law?"; "What is the relationship between law and power/sociology?"; and, "What is the relationship between law and morality?" Legal positivism is the dominant theory, although there are a growing number of critics, who offer their own interpretations.
Legal positivists
Positivism simply means that the law is something that is "posited": laws are validly made in accordance with socially accepted rules. The positivist view on law can be seen to cover two broad principles: Firstly, that laws may seek to enforce justice, morality, or any other normative end, but their success or failure in doing so does not determine their validity. Provided a law is properly formed, in accordance with the rules recognized in the society concerned, it is a valid law, regardless of whether it is just by some other standard. Secondly, that law is nothing more than a set of rules to provide order and governance of society. No legal positivist, however, argues that it follows that the law is therefore to be obeyed, no matter what. This is seen as a separate question entirely.
• What the law is - is determined by social facts (or "sources')
• What obedience the law is owed - is determined by moral considerations
Bentham and Austin
One of the earliest legal positivists was Jeremy Bentham. Bentham was an early and staunch supporter of the utilitarian concept (along with Hume), an avid prison reformer, advocate for democracy, and strongly atheist. Bentham's views about law and jurisprudence were popularized by his student, John Austin. Austin was the first chair of law at the new University of London from 1829. Austin's utilitarian answer to "what is law?" was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience". Contemporary legal positivists have long abandoned this view, and have criticized its oversimplification, H.L.A. Hart particularly.
Hans Kelsen
Hans Kelsen is considered one of the preeminent jurists of the 20th century. He is most influential in Europe, where his notion of a Grundnorm or a "presupposed" ultimate and basic legal norm, still retains some influence. It is a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and "simple" law are based. Kelsen's pure theory of law described the law as being a set of social facts, which are normatively binding too. Law's normatively, meaning that we must obey it, derives from a basic rule which sits outside the law we can alter. It is a rule proscribing the validity of all others.
Kelsen was a Professor around Europe, notably the University of Vienna. In 1940, he moved to the United States, giving the Oliver Wendell Holmes Lectures at Harvard Law School in 1942 and becoming a full professor at the department of political science at the University of California, Berkeley in 1945. During those years, he increasingly dealt with issues of international law and international institutions such as the United Nations.
H.L.A. Hart
In the Anglophone world, the pivotal writer was H.L.A. Hart, who argued that the law should be understood as a system of social rules. Hart rejected Kelsen's views that sanctions were essential to law and that a normative social phenomenon, like law, can not be grounded in non-normative social facts. Hart really revived analytical jurisprudence as an important theoretical debate in the twentieth century through his book The Concept of Law. As the chair of jurisprudence at Oxford University, Hart argued law is a 'system of rules'.
Rules, said Hart, are divided into primary rules (rules of conduct) and secondary rules (rules addressed to officials to administer primary rules). Secondary rules are 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). The "rule of recognition", a customary practice of the officials (especially judges) that identifies certain acts and decisions as sources of law. Hart's theory, although widely admired, has also been criticized by a variety of late twentieth century philosophers of law, including Ronald Dworkin, John Finnis, and Joseph Raz.
In recent years, debates about the nature of law have become increasingly fine-grained. One important debate is within legal positivism. One school is sometimes called exclusive legal positivism, and it is associated with the view that the legal validity of a norm can never depend on its moral correctness. A second school is labeled inclusive legal positivism, and it is associated with the view that moral considerations may determine the legal validity of a norm, but that it is not necessary that this is the case.
Joseph Raz
Some philosophers used to contend that positivism was the theory that there is "no necessary connection" between law and morality; but influential contemporary positivists, including Joseph Raz, John Gardner, and Leslie Green, reject that view. As Raz points out, it is a necessary truth that there are vices that a legal system cannot possibly have (for example, it cannot commit rape or murder).
Joseph Raz defends the positivist outlook, but criticized Hart's "soft social thesis" approach in The Authority of Law. Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorization of rules beyond their role as authoritative is best left to sociology, rather than jurisprudence.
Ronald Dworkin
Ronald Dworkin is a leading philosopher, and was Hart's star pupil at Oxford. In his book 'Law's Empire' Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an 'interpretive' concept, that requires judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions. According to him, law is not entirely based on social facts, but includes the morally best justification for the institutional facts and practices that we intuitively regard as legal. It follows on Dworkin's view that one cannot know whether a society has a legal system in force, or what any of its laws are, until one knows some moral truths about the justifications for the practices in that society. It is consistent with Dworkin's view--in contrast with the views of legal positivists or legal realists--that *no one* in a society may know what its laws are (because no one may know the best justification its practices.)
Interpretation, according to Dworkin's law as integrity theory, has two dimensions. To count as an interpretation, the reading of a text must meet the criterion of fit. But of those interpretations that fit, Dworkin maintains that the correct interpretation is the one that puts the political practices of the community in their best light, or makes of them the best that they can be. But many writers have doubted whether there is a single best justification for the complex practices of any given community, and others have doubted whether, even if there are, they should be counted as part of the law of that communi.
Legal realism
Legal realism was a view popular with some Scandinavian and American writers. Skeptical in tone, it held that the law should be understood and determined by the actual practices of courts, law offices, and police stations, rather than as the rules and doctrines set forth in statutes or learned treatises. It had some affinities with the sociology of law. The essential tenet of legal realism is that all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections.
It has become quite common today to identify Justice Oliver Wendell Holmes, Jr., as the main precursor of American Legal Realism (other influences include Roscoe Pound, Karl Llewellyn and Justice Benjamin Cardozo). The chief inspiration for Scandinavian legal realism many consider to be the works of Axel Hägerström. Despite its decline in facial popularity, realists continue to influence a wide spectrum of jurisprudential schools today, including critical legal studies (scholars such as Duncan Kennedy and Roberto Unger), feminist legal theory, critical race theory, and law and economics.
The Historical School
Historical jurisprudence came to prominence during the German debate over the proposed codification of German law. In his book On the Vocation of Our Age for Legislation and Jurisprudence, Friedrich Carl von Savigny argued that Germany did not have a legal language that would support codification because the traditions, customs and beliefs of the German people did not include a belief in a code. The Historicists believe that the law originates with society.
Normative jurisprudence
In addition to the question, "What is law?", legal philosophy is also concerned with normative, or "evaluative" theories of law. What is the goal or purpose of law? What moral or political theories provide a foundation for the law? What is the proper function of law? What sorts of acts should be subject to punishment, and what sorts of punishment should be permitted? What is justice? What rights do we have? Is there a duty to obey the law? What value has the rule of law? Some of the different schools and leading thinkers are as follows.
Virtue jurisprudence
retaic moral theories such as contemporary virtue ethics emphasize the role of character in morality. Virtue jurisprudence is the view that the laws should promote the development of virtuous characters by citizens. Historically, this approach is associated mainly with Aristotle or Thomas Aquinas later. Contemporary virtue jurisprudence is inspired by philosophical work on virtue ethics.
Deontology eontology is "the theory of duty or moral obligation." The philosopher Immanuel Kant formulated one influential deontological theory of law. He believed that morality is what if I do, would be good for everyone to do. A contemporary deontological approach can be found in the work of the legal philosopher Ronald Dworkin.
Utilitarianism
Utilitarianism is the view that the laws should be crafted so as to produce the best consequences. Historically, utilitarian thinking about law is associated with the great philosopher, Jeremy Bentham. John Stuart Mill was a pupil of Bentham's and was the torch bearer for utilitarian philosophy through the late nineteenth century.[23] In contemporary legal theory, the utilitarian approach is frequently championed by scholars who work in the law and economics tradition.
John Rawls
John Rawls was an American philosopher, a professor of political philosophy at Harvard University and author of A Theory of Justice (1971), Political Liberalism, Justice as Fairness: A Restatement, and The Law of Peoples. He is widely considered one of the most important English-language political philosophers of the 20th century. His theory of justice uses a device called the original position to ask us which principles of justice we would choose to regulate the basic institutions of our society if we were behind a `veil of ignorance.' Imagine we do not know who we are - our race, sex, wealth status, class, or any distinguishing feature - so that we would not be biased in our own favor. Rawls argues from this 'original position' that we would choose exactly the same political liberties for everyone, like freedom of speech, the right to vote and so on. Also, we would choose a system where there is only inequality because that produces incentives enough for the economic well-being of all society, especially the poorest. This is Rawls' famous 'difference principle'. Justice is fairness, in the sense that the fairness of the original position of choice guarantees the fairness of the principles chosen in that position.
There are many other normative approaches to the philosophy of law, including critical legal studies and libertarian theories of law.

Chapter three
Economics and Sociology of law

Law and economics
Law and economics, or economic analysis of law, is the term usually applied to an approach to legal theory that incorporates methods and ideas borrowed from the discipline of economics.
Origin and history
As early as in the 18th century, Adam Smith discussed the economic effect on mercantilist legislation. However, to apply economics to analyze the law regulating nonmarket activities is relatively new. In 1961, Ronald Coase and Guido Calabresi independently from each other published two groundbreaking articles: "The Problem of Social Cost" and "Some Thoughts on Risk Distribution and the Law of Torts". This can been seen as the starting point for the modern school of law and economics.
In the early 1970's, Henry Manne (a former student of Coase) set out to build a Center for Law and Economics at a major law school. He began at Rochester, worked at Miami, but was soon made unwelcome, moved to Emory, and ended at George Mason. The latter soon became a center for the education of judges -- many long out of law school and never exposed to numbers and economics. Manne also attracted the support of the John M. Olin Foundation, whose support accelerated the movement. Today, Olin centers (or programs) for Law and Economics thrive at Harvard, Yale, Chicago, Stanford, Georgetown, Michigan, and more.
Positive and normative law and economics
Economic analysis of law is usually divided into two subfields, positive and normative.
Positive law and economics
Positive law and economics uses economic analysis to predict the effects of various legal rules. So, for example, a positive economic analysis of tort law would predict the effects of a strict liability rule as opposed to the effects of a negligence rule. Positive law and economics has also at times purported to explain the development of legal rules, for example the common law of torts, in terms of their economic efficiency.
Normative law and economics
Normative law and economics goes one step further and makes policy recommendations based on the economic consequences of various policies. The key concept for normative economic analysis is efficiency. The weakest concept of efficiency used by law and economics scholars is Pareto efficiency. A legal rule is Pareto efficient if it could not be changed so as to make one person better off without making another person worse off. (By weak, economists mean that Pareto efficiency makes very few normative assumptions, not that it is supported by weak arguments.) A stronger conception of efficiency is Kaldor-Hicks efficiency. A legal rule is Kaldor-Hicks efficient if it could be made Pareto efficient by a side payment.
Important scholars
Many important figures in law and economics have been associated with the University of Chicago Law School. These include the Nobel Prize winning economists Ronald Coase and Gary Becker, U.S. Court of Appeals for the Seventh Circuit judges Frank Easterbrook and Richard Posner, and William Landes. Guido Calabresi of Yale, judge for the U.S. Court of Appeals for the Second Circuit, also played a seminal role. His 1970 book, The Cost of Accidents: A Legal and Economic Analysis, had an enormous impact on modern thought on the subject.
Influence
In the United States, economic analysis of law has been extremely influential. Judicial opinions utilize economic analysis and the theories of law and economics with some regularity. The influence of law and economics has also been felt in legal education. Many law schools in North America, Europe, and Asia have faculty members with a graduate degree in economics. In addition, many professional economists now study and write on the relationship between economics and legal doctrine.
Criticisms
Despite its influence, the law and economics movement has been criticized from a number of directions. This is especially true of normative law and economics. Because most law and economics scholarship operates within a neoclassical framework, fundamental criticisms of neoclassical economics have been applied to work in law and economics. Within the legal academy, law and economics has been criticized on the ground that rational choice theory in economics makes unrealistic simplifying assumptions about human nature (see rational choice theory (criminology)); Posner's application of law and economic reasoning to rape and sex may be an example of this. Liberal critics of the law and economics movements have argued that normative economic analysis does not capture the importance of human rights and concerns for distributive justice. Some of the heaviest criticisms of the "classical" law and economics come from the critical legal studies movement, in particular Duncan Kennedy[1] and Mark Kelman.
Law and economics has adapted to some of these criticisms (see "contemporary developments," below). One critic, Jon D. Hanson of Harvard Law School, argues that our legal, economic, political, and social systems are unduly influenced by an individualistic model that assumes "dispositionism" - the idea that outcomes are the result of our "dispositions" (economists would say "preferences"). Instead, Hanson argues, we should look to the "situation", both inside of us (including cognitive biases) and outside of us (family, community, social norms, and other environmental factors) that have a much larger impact on our actions than mere "choice." Hanson has written many law review articles on the subject and has books forthcoming.
Contemporary developments
Law and economics has developed in a variety of directions. One important trend has been the application of game theory to legal problems. Other developments have been the incorporation of behavioral economics into economic analysis of law, and the increasing use of statistical and econometrics techniques. Within the legal academy, the term socio-economics has been applied to economic approaches that are self-consciously broader than the neoclassical tradition.
Sociology of law
Sociology of law refers to both a sub-discipline of sociology and an approach within the field of legal studies. Sociology of law is a diverse field of study which examines the interaction of law with other aspects of society: such as the effect of legal institutions, doctrines, and practices on other social phenomena and vice versa. Some of its areas of inquiry include the social development of legal institutions, the social construction of legal issues, and the relation of law to social change. Sociology of law overlaps with jurisprudence, economic analysis of law and more specialised subjects such as criminology.
History
Max Weber in 1917 - Weber who began as a lawyer and economic historian is regarded as one of the founders of sociology and sociology of law.
Initially, legal theorists were suspicious of the sociology of law. Kelsen attacked one of its founders, Eugen Ehrlich, who wanted to emphasize the difference between positive law, which lawyers learn and apply, and other forms of 'law' or social norms that regulate everyday life, generally preventing conflicts from reaching lawyers and courts. Around 1900 Max Weber defined his "scientific" approach to law, identifying the "legal rational form" as a type of domination, not attributable to people but to abstract norms. Legal rationalism was his term for a body of coherent and calculable law which formed a precondition for modern political developments and the modern bureaucratic state and developed in parallel with the growth of capitalism. Another sociologist, Émile Durkheim, wrote in The Division of Labour in Society that as society becomes more complex, the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions. Other notable early legal sociologists included Hugo Sinzheimer, Theodor Geiger, Georges Gurvitch and Leon Petrażycki in Europe, and William Graham Sumner in the U.S.
Law and Society
In legal studies, the sociology of law is part of a more broadly conceived law and society approach or socio-legal studies. Its focus is on theoretically guided empirical studies. As such it draws on and contributes to social theory. The sociology of law is not to be confused with sociological jurisprudence. The latter is a juristic perspective, developed in the United States by Roscoe Pound and by earlier jurists in various European countries, that seeks to base legal arguments on sociological insight.

Chapter Four
Legal systems: Background
In general, legal systems around the world can be split between civil law jurisdictions, on the one hand, and systems using common law and equity, on the other. The term civil law, referring to a legal system, should not be confused with civil law as a group of legal subjects, as distinguished from criminal law or public law. A third type of legal system - still accepted by some countries in part, or even in whole - is religious law, based on scriptures and interpretations thereof. The specific system that a country follows is often determined by its history, its connection with countries abroad, and its adherence to international standards. The sources that jurisdictions recognize as authoritatively binding are the defining features of legal systems. Yet classification of different systems is a matter of form rather than substance, since similar rules often prevail.
Civil law is the legal system used in most countries around the world today. In civil law the sources recognized as authoritative are, primarily, legislation - especially codifications in constitutions or statutes passed by government - and, secondarily, custom. Codifications date back millennia, with one early example being the ancient Babylonian Codex Hammurabi, but 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 there was no professional legal class. Instead a lay person, index, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognized. 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 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. 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." 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. Civil law codifications based closely on Roman law 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, modernized 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. Today countries that have civil law systems range from Russia and China to most of Central and Latin America.
Common law and equity are systems of law whose special distinction is the doctrine of precedent, or stare decisis (Latin for "to stand by decisions"). Alongside this "judge-made law", common law systems always have governments who pass new laws and statutes. But these are not put into a codified form. Common law comes from England and was inherited by almost every country that once belonged to the British Empire, with the exceptions of Malta, Scotland, the U.S. state of Louisiana and the Canadian province of Quebec. Common law had its beginnings in the Middle Ages, 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. 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 centralized. In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five. This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law. 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 judgement 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 criticized as erratic, that it "varies like the Chancellor's foot". But over time it developed solid principles, especially under Lord Eldon. 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. But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.
Religious law refers to the notion that the word of God is law. Examples include the Jewish Halakha and Islamic Sharia, both of which mean the "path to follow". Christian Canon law also survives in some Church communities. The implication of religion for law is inalterability, because the word of God cannot be amended or legislated against by judges or governments. However, religious texts usually do not provide for a thorough and detailed legal system. For instance, the Quran has some law but not much, and it acts merely as a source of further law through interpretation. This is mainly contained in a body of jurisprudence known as the fiqh. The first five books of the Old Testament are known as the Torah and include Genesis, Exodus, Leviticus, Numbers and Deuteronomy. The Halakha is the interpretation of teachings and is followed by orthodox and conservative Jews in both ecclesiastical and civil relations. Nevertheless, Israel is not governed by Halakha, but under Israeli law, the litigants may decide, because of personal belief, to have a dispute heard by a Rabbinic court and be bound by its rulings. 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 reigned supreme, nominally at least, throughout the Muslim world; but since the mid-1940s efforts have been made, in country after country, to bring the law more into line with modern conditions and conceptions. Nowadays, Sharia is merely an optional supplement to the civil or common law of most countries, though Saudi Arabia and Iran's whole legal systems source their law in Sharia. 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.


Chapter Five
Civil law system
Civil law or continental law is the predominant system of law in the world. Civil law as a legal system is often compared with common law. The main difference that is usually drawn between the two systems is that common law draws abstract rules from specific cases, whereas civil law starts with abstract rules, which judges must then apply to the various cases before them.
Civil law has its roots in Roman law, Canon law and the Enlightenment. The legal systems in many civil law countries are based around one or several codes of law, which set out the main principles that guide the law. The most famous example is perhaps the French Civil Code, although the German BGB and the Swiss Civil Code are also landmark events in legal history. The civil law systems of Scotland and South Africa are uncodified, and the civil law systems of Scandinavian countries remain largely uncodified.
The civil law system is based on Roman law, especially the Corpus Juris Civilis of Emperor Justinian, as later developed by medieval legal scholars .
The acceptance of Roman law had different characteristics in different countries. In some of them its effect resulted from legislative act, i.e. it became positive law, whereas in other ones it became accepted by way of its processing by legal theorists.
Consequently, Roman law did not completely dominate in Europe . Roman law was a secondary source, that was applied only as long as local customs and local laws lacked a pertinent provision on a particular matter. However, local rules too were interpreted primarily according to Roman law (it being a common European legal tradition of sorts), resulting in its influencing the main source of law also.
A second characteristic, beyond Roman law foundations, is the extended codification of the adopted Roman law, i.e. its inclusion into civil codes.
The concept of codification developed especially during the 17th and 18th century, as an expression of both Natural Law and the ideas of the Enlightenment. The political ideal of that era was expressed by the concepts of democracy, protection of property and the rule of law. That ideal required the creation of certainty of law, through the recording of law and through its uniformity. So, the aforementioned mix of Roman law and customary and local law ceased to exist, and the road opened for law codification, which could contribute to the aims of the above mentioned political ideal.
Another reason that contributed to codification was that the notion of the nation state, which was born during the 19th century, required the recording of the law that would be applicable to that state.
Certainly, there was also reaction to the aim of law codification. The proponents of codification regarded it as conducive to certainty, unity and systematic recording of the law; whereas its opponents claimed that codification would result in the ossification of the law.
At the end, despite whatever resistance to codification, the codification of European private laws moved forward. The French Napoleonic Code (code civil) of 1804, the German civil code (Bürgerliches Gesetzbuch) of 1900 and the Swiss codes were the most influential national civil codes.
Because Germany was a rising power in the late 19th century and the well organized system it presented, when many Asian nations were introducing civil law, the German Civil Code became the basis for the legal systems of Japan and South Korea. In China, the German Civil Code was introduced in the later years of the Qing Dynasty and formed the basis of the law of the Republic of China, which remains in force in Taiwan.
Some authors consider civil law to have served as the foundation for socialist law used in Communist countries, which in this view would basically be civil law with the addition of Marxist-Leninist ideas.
Civil versus common law
Civil law is primarily contrasted against common law, which is the legal system developed among Anglo-Saxon people, especially in England.
The original difference is that, historically, common law was law developed by custom, beginning before there were any written laws and continuing to be applied by courts after there were written laws, too, whereas civil law developed out of the Roman law of Justinian's Corpus Juris Civilis.
In later times civil law became codified as droit coutumier or customary law that were local compilations of legal principles recognized as normative. Sparked by the age of enlightenment, attempts to codify private law began during the second half of the 18th century, but civil codes with a lasting influence were promulgated only after the French Revolution, in jurisdictions such as France, Austria, , Spain, the Netherlands and Germany. However, codification is by no means a defining characteristic of a civil law system, the civil law systems of Scandinavian countries remain largely uncodified, whereas common law jurisdictions have frequently codified parts of their laws, e.g. in the U.S. Uniform Commercial Code. There are also mixed systems, such as the laws of Scotland, Louisiana, Quebec, the Philippines, Namibia and South Africa.
Thus, the difference between civil law and common law lies not just in the mere fact of codification, but in the methodological approach to codes and statutes. In civil law countries, legislation is seen as the primary source of law. By default, courts thus base their judgments on the provisions of codes and statutes, from which solutions in particular cases are to be derived. Courts thus have to reason extensively on the basis of general rules and principles of the code, often drawing analogies from statutory provisions to fill lacunae and to achieve coherence. By contrast, in the common law system, cases are the primary source of law, while statutes are only seen as incursions into the common law and thus interpreted narrowly.
The underlying principle of separation of powers is seen somewhat differently in civil law and common law countries. In some common law countries, especially the United States, judges are seen as balancing the power of the other branches of government. By contrast, the original idea of separation of powers in France was to assign different roles to legislation and to judges. This translates into the fact that many civil law jurisdictions reject the formalistic notion of binding precedent (although paying due consideration to settled case-law).
There are other notable differences between the legal methodologies of various civil law countries. For example, it is often said that common law opinions are much longer and contain elaborate reasoning, whereas legal opinions in civil law countries are usually very short and formal in nature. This is in principle true in France, where judges cite only legislation, but not prior case law. (However, this does not mean that judges do not consider it when drafting opinions.) By contrast, court opinions in German-speaking countries can be as long as English ones, and normally discuss prior cases and academic writing extensively.
There are, however, certain sociological differences. In some Civil law countries judges are trained and promoted separately from attorneys, whereas common law judges are usually selected from accomplished and reputable attorneys. In the Scandinavian countries judges are attorneys who have applied for the position, whereas France has a specialized graduate school for judges.
With respect to criminal procedure, certain civil law systems are based upon a variant of the inquisitorial system rather than the adversarial system. In common law countries, this kind of judicial organization is sometimes criticized as lacking a presumption of innocence. Most European countries, however, are parties to the European Convention on Human Rights and Article 6 guarantees "the right to a fair trial" and the presumption of innocence. The Convention is ratified by all the members and as such part of their national legislation. Some Civil law nations also have legislation that predates the Convention and secures the defendant the presumption of innocence. Amongst them Norway where the presumption is guaranteed by uncodified customary law and validated theory recognized by the Supreme Court in plenary (effectively forming a precedent).
Subgroups
The term "civil law" as applied to a legal tradition actually originates in English-speaking countries, where it was used to lump all non-English legal traditions together and contrast them to the English common law. However, since continental European traditions are by no means uniform, scholars of comparative law and economists promoting the legal origins theory usually subdivide civil law into four distinct groups:
• French civil law: in France, the Benelux countries, The Canadian Province of Quebec, Italy, Spain and former colonies of those countries;
• German civil law: in Germany, Austria, Switzerland, Greece, Portugal, Turkey, Japan, South Korea and the Republic of China;
• Scandinavian civil law: in Denmark, Norway and Sweden. Finland and Iceland inherited the system from their neighbors.
• Chinese law is a mixture of civil law and socialist law.
Portugal, Brazil and Italy have evolved from French to German influence, as their 19th century civil codes were close to the Napoleonic Code and their 20th century civil codes are much closer to the German Bürgerliches Gesetzbuch. Legal culture and law schools have also come near to the German system. The other law in these countries is often said to be of a hybrid nature.
The Dutch law or at least the Dutch civil code cannot be easily placed in one of the mentioned groups either, and it has itself influenced the modern private law of other countries. The present Russian civil code is in part a translation of the Dutch one.


Chapter Six
Common law
In common law legal systems, judges have the authority and duty to decide what the law is when there is no other authoritative statement of the law. Once an appellate court has decided what the law is, that precedent tends to bind future decisions of the same appellate court, and binds all lower courts reviewed by that appellate court, when the facts of the case are similar, until there is another authoritative statement of the law (e.g. by a legislature or higher court). The common law forms a major part of the legal systems of those countries of the world with a history as territories or colonies of the British Empire. It is notable for its inclusion of extensive non-statutory law reflecting precedent (stare decisis) derived from centuries of judgments by working jurists .
Common law legal systems
The common law constitutes the basis of the legal systems of: England and Wales, Northern Ireland, the Republic of Ireland, federal law in the United States and the states' laws (except Louisiana), federal law in Canada and the provinces' laws (except Quebec civil law), Australia (both federal and individual states), New Zealand, South Africa, India, Malaysia, Brunei, Pakistan, Singapore, Hong Kong, and many other generally English-speaking countries or Commonwealth countries (except Malta and Scotland and the Canadian province of Quebec)). Essentially, every country which has been colonized at some time by England, Great Britain, or the United Kingdom uses common law except those that had been formerly colonized by other nations, such as Quebec (which follows French law to some extent), South Africa and Sri Lanka (which follow Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. India's system of common law is also a mixture of English law and the local Hindu law, except in the state of Goa which retains the Portuguese civil code.
The main alternative to the common law system is the civil law system, which is used in Continental Europe, and most of the rest of the world. The former Soviet Bloc and other Socialist countries used a Socialist law system.
The opposition between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence (almost like case law but in name) in civil law countries, and the growing importance of statute law and codes in common law countries (for example, in matters of criminal law, commercial law (the Uniform Commercial Code in the early 1960s) and procedure (the Federal Rules of Civil Procedure in the 1930s and the Federal Rules of Evidence in the 1970s).
Scotland is often said to use the civil law system but in fact it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707 (see Legal institutions of Scotland in the High Middle Ages). Scots common law differs in that the use of precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent and that the principles of natural justice and fairness have always formed a source of Scots Law. Comparable pluralistic (or 'mixed') legal systems operate in Quebec, Louisiana and South Africa.
The U.S. state of California has a system based on common law, but it has codified the law in the manner of the civil law jurisdictions. The reason for the enactment of the codes in California in the nineteenth century was to replace a pre-existing system based on Spanish civil law with a system based on common law, similar to that in most other states. California and a number of other Western states, however, have retained the concept of community property derived from civil law. The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law.
The state of New York, which also has a civil law history from its Dutch colonial days, also began a codification of its laws in the 19th century. The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure. The original colony of New Netherlands was settled by the Dutch and the law was also Dutch. When the English captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was recaptured by the Dutch. When the English finally regained control of New Netherlands -- as a punishment unique in the history of the British Empire -- they forced the English common law upon all the colonists, including the Dutch. This was problematic as the patroon system of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-nineteenth century. The influence of Roman Dutch law continued in the colony well into the late nineteenth century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.
United States federal common law
Federal common law is a term of United States law used to describe common law that is developed by the federal courts, instead of by the courts of the various states. Up until 1938, the federal courts followed the doctrine set forth in the 1842 case of Swift v. Tyson. In that case, the United States Supreme Court had held that federal courts hearing cases brought under their diversity jurisdiction (allowing them to hear cases between parties from different states) had to apply the statutory law of the states, but not the common law developed by state courts. Instead, the Supreme Court permitted the federal courts to make their own common law based on general principles of law. In 1938, the Supreme Court decided Erie Railroad v. Tompkins. Erie over-ruled Swift v. Tyson, and instead held that federal courts exercising diversity jurisdiction had to use all of the same substantive laws as the courts of the states in which they were located. As the Erie Court put it, there is no "general federal common law", the key word here being general. Erie did not put an end to other types of federal common law in certain areas where Congress has given the courts power to develop substantive law, and areas where a federal rule of decision is necessary to protect uniquely federal interests. Congress is free to modify the federal common law .
Works on the common law
The definitive historical treatise on the common law is Commentaries on the Laws of England, written by Sir William Blackstone and first published in 1765 - 1769. Since 1979 a facsimile edition of that first edition has been available in four paper-bound volumes. Today it has been superseded in the English part of the United Kingdom by Halsbury's Laws of England that covers both common and statutory English law.
While he was still on the Massachusetts Supreme Judicial Court, and before being named to the U.S. Supreme Court, Justice Oliver Wendell Holmes Jr. published a short volume called The Common Law which remains a classic in the field.
In the United States, Restatements of various subject matter areas (Contracts, Torts, Judgments, etc.), edited by the American Law Institute, collect the common law for the area. The ALI Restatements are often cited by American courts and lawyers for propositions of uncodified common law, and are considered highly-persuasive authority, just below binding precedential decisions. The Corpus Juris Secundum is an encyclopedia whose main content is a compendium of the common law and its variations throughout the various state jurisdictions .
Scots common law covers matters including murder and theft, and has sources in custom, in legal writings and previous court decisions. The legal writings used are called Institutional Texts and come mostly from the 17th , 18th and 19th centuries.
Different connotations of the term
There are three important connotations to the term common law .
1. Common law as opposed to statutory law and regulatory law: The first connotation differentiates the authority that promulgated a particular proposition of law. For example, in most areas of law in most jurisdictions in the United States, there are "statutes" enacted by a legislature, "regulations" promulgated by executive branch agencies pursuant to a delegation of rule-making authority from a legislature, and "common law" (case law) decisions issued by courts (or quasi-judicial tribunals within agencies). This first connotation can be further differentiated, into (a) laws that arise purely from the common law without express statutory authority, for example, most of the criminal law and procedural law before the 20th century, and even today, most of contract law and the law of torts, and (b) decisions that discuss and decide the fine boundaries and distinctions in written laws promulgated by other bodies, such as the Constitution, statutes and regulations.
2. Common law legal systems as opposed to civil law legal systems: The second connotation differentiates "common law" jurisdictions and legal systems from "civil law" or "code" jurisdictions. Common law systems place great weight on court decisions, which are considered "law" just as are statutes. By contrast, in civil law jurisdictions, case law was traditionally given less weight - for example the Napoleonic code expressly forbade French judges from pronouncing the law.
3. Law as opposed to equity: The third differentiates "common law" (or just "law") from "equity". Before 1873, England had two parallel court systems, courts of "law" that could only award money damages and recognized only the legal owner of property, and courts of "equity" that recognized trusts of property and could issue injunctions (orders to do or stop doing something). Although the separate courts were merged long ago in most jurisdictions, or at least all courts were permitted to apply both law and equity (though under potentially different laws of procedure), the distinction between law and equity remains important in (a) categorizing and prioritizing rights to property, (b) determining whether the Seventh Amendment's right to a jury trial applies (a determination of a fact necessary to resolution of a "law" claim) or whether the issue may be decided by a judge (issues of what the law is, and all issues relating to equity), and (c) in the principles that apply to the grant of equitable remedies by the courts.
Basic principles of common law
In common law legal systems (connotation 2), the common law (connotation 1) is crucial to understanding almost all important areas of law. For example, in England and Wales and in most states of the United States, the basic law of contracts, torts and property do not exist in statute, but only in common law (though there may be isolated modifications enacted by statute). In almost all areas of the law (even those where there is a statutory framework, such as contracts for the sale of goods, or the criminal law), other written laws generally give only terse statements of general principle, and the fine boundaries and definitions exist only in the common law (connotation 1). To find out what the precise law is that applies to a particular set of facts, one has to locate precedential decisions on the topic, and reason from those decisions by analogy. To consider but one example, the First Amendment to the U.S. Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" - but interpretation (that is, determining the fine boundaries) of each of the important terms was delegated by Article III of the Constitution to the judicial branch, so that the current legal boundaries of the Constitutional text can only be determined by consulting the common law.
In common law jurisdictions, legislatures operate under the assumption that statutes will be interpreted against the backdrop of the pre-existing common law case law and custom, and so may leave a number of things unsaid. For example, in most U.S. states, the criminal statutes are primarily codification of pre-existing common law. (Codification is the process of enacting a statute that collects and restates pre-existing law in a single document - when that pre-existing law is common law, the common law remains relevant to the interpretation of these statutes.) This is why even today American law schools teach the common law of crime as practiced in England in 1750, since the colonies (and subsequently the states) deviated from the common law as practiced in England only after that date, and modern statutes can only be understood when one interprets the literal words of a criminal statute in light of that historical common law .
By contrast to the statutory codifications of common law, some laws are purely statutory, and may create a new cause of action beyond the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child or estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute exists, the compensation or other remedy available is limited to the remedy specified in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly -- that is, limited to their precise terms -- because the courts generally recognize the legislature as being supreme in deciding the reach of judge-made law unless such statute should violate some "second order" constitutional law provision (compare judicial activism).
Where a tort is rooted in common law, then all damages traditionally recognized historically for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. For instance, a person who sustains bodily injury through the negligence of another may sue for medical costs, pain, suffering, loss of earnings or earning capacity, mental and/or emotional distress, loss of quality of life, disfigurement, and more. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death.
Common law adjudication
In a common law jurisdiction, to determine what "the law is" in a given situation, both judges and attorneys seeking to advise clients follow the same process. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. then one must extract the principles, analogies, and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. Later decisions, and decisions of higher courts or legislatures carry more weight than earlier cases of lower courts. Finally, one integrates all the lines drawn and reasons given, and determines what "the law is." Then, one applies that law to the facts. The common law is more maleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, in the manner of a alive without legislative intervention to adapt to new trends in political, legal, and social philosophy. Second, the common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects. In contrast, the legislative process is very difficult to get started: legislatures do not act until a situation is totally intolerable. Because of this, legislative changes tend to be large, jarring and disruptive (either positively or negatively) .
In many subject matter areas, legal treatises compile common law decisions and state overarching principles that, in the author's opinion, explain the results of the cases. However, treatises are not the law, and lawyers and judges tend to use these treatises as only "finding aids" to locate the relevant cases.
Common law as a foundation for commercial economies
This reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the U.K. and U.S. Because there is common law to give reasonably precise guidance on almost every issue, parties (especially commercial parties) can predict whether a proposed course of action is likely to be lawful or unlawful. This ability to predict gives more freedom to come close to the boundaries of the law. For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, perhaps close to the line, is almost certainly legal. Newspapers, taxpayer-funded entities with some religious affiliation, and political parties can obtain fairly clear guidance on the boundaries within which their freedom of expression rights apply. In contrast, in non-common-law countries, fine questions of law are redetermined anew each time they arise, making consistency and prediction more difficult. Thus, in jurisdictions that do not have a strong allegiance to a large body of precedent, parties have less a priori guidance must often leave a bigger "safety margin" of unexploited opportunities.
History of the common law
England before 1600
Common law originally developed under the inquisitorial system in England from judicial decisions that were based in tradition, custom, and precedent. Such forms of legal institutions and culture bear resemblance to those which existed historically in continental Europe and other societies where precedent and custom have at times played a substantial role in the legal process, including Germanic law recorded in Roman historical chronicles. The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and as developing the body of law recognizing and regulating contracts. The type of procedure practiced in common law courts is known as the adversarial system; this is also a development of the common law .
Before the institutional stability imposed on England by William the Conqueror in 1066, English residents, like those of many other societies, particularly the Germanic cultures of continental Europe, were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a cauldron of boiling water or some other "test" of veracity (trial by ordeal). If the defendant's wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed.
In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil and criminal court systems.
Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country. His judges would resolve disputes on an ad hoc basis according to what they interpreted the customs to be. The king's judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed. In time, a rule, known as stare decisis (also commonly known as precedent) developed, which is where a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another. By this system of precedent, decisions 'stuck' and became ossified, and so the pre-Norman system of disparate local customs was replaced by an elaborate and consistent system of laws that was common throughout the whole country, hence the name, 'common law'.
Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously, with Thomas Becket, the Archbishop of Canterbury. Things were resolved eventually, at least for a time, in Henry's favour when four of his knights, hoping to curry favour with him, murdered Becket in Canterbury Cathedral.
Thus, in English legal history, judicially-developed "common law" became the uniform authority throughout the realm several centuries before Parliament acquired the power to make laws.
The Common Law in the colonies and commonwealth - Reception statutes
In the United States, following the American Revolution, one of the first legislative acts taken by the newly independent states was to adopt "reception statutes" receiving the English Common Law. Some of these reception statutes were ordinary legislative acts, whereas some of them were implemented via state constitutions. For example, the New York Constitution of 1777 stated (in Article 35) that:
Alexander Hamilton emphasized in The Federalist that this state constitutional provision in New York expressly made the common law subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." Thus, even when a reception statute was embodied in a state constitution, the common law was still subject to alteration by legislatures.
The Northwest Ordinance, which was approved by the Congress of the Confederation in 1787, guaranteed (in Article Two) "judicial proceedings according to the course of the common law." This provision operated as a type of reception statute in the vast territories where no states had yet been established. The primary author of the Northwest Ordinance was Nathan Dane, and he viewed this provision as a default mechanism in the event that federal or territorial statutes were silent about a particular matter; he wrote that if "a statute makes an offence, and is silent as to the mode of trial, it shall be by jury, according to the course of the common law.”
As more territories of the United States were granted statehood by Congress, the new states adopted reception statutes, just as their territorial legislatures had done. Here is an example of a reception statute enacted by ordinary legislation, in the state of Washington:"The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state."
1870 through 20th Century - Merger of Law and Equity
As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they might argue that an award of damages (at common law) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, even though it was established by the 17th century that equity should prevail. A famous example is the fictional case of Jarndyce and Jarndyce in Bleak House, by Charles Dickens.
In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict.
In the United States, parallel systems of law (providing money damages, heard by a jury if either party so requests) and equity (fashioning a remedy to fit the situation, including injunctive relief, heard by a judge) survived well into the 20th century. The United States federal courts procedurally separated law and equity: the same judges could hear either kind of case, but a given case could only pursue causes in law or in equity, and the two kinds of cases proceeded under different procedural rules. This became problematic when a given case required both money damages and injunctive relief. In 1937, the new Federal Rules of Civil Procedure combined law and equity into one form of action, the "civil action.

Chapter Seven
Religious law
In the religious sense, law can be thought of as the ordering principle of reality; knowledge as revealed by God defining and governing all human affairs. Law, in the religious sense, also includes codes of ethics and morality which are upheld and required by God. Examples include customary Hindu law, Sharia (Islamic law), Halakha (Jewish law), and the divine law of the Mosaic code or Torah.
Established religions and religious institutions
State churches and similar established religions are connected to the governments that establish them. In some jurisdictions, this means that they operate legal systems of their own or play a part in the legal system of those governments. Canon law is one such sort of legal system; it was administered in ecclesiastical courts. In England, the system of equity was originally established by the Church.
Judaism
The basis of Jewish law and tradition ("halakhah") is the Torah (The Five Books of Moses). According to rabbinic tradition there are 613 commandments in the Torah, which pertain to nearly every aspect of human life. Some of these laws are directed only to men or to women, some only to the ancient priestly groups, the Kohanim and Leviyim (members of the tribe of Levi), some only to farmers within the land of Israel. Many laws were only applicable when the Temple in Jerusalem existed, and fewer than 300 of these commandments are still applicable today. Especially after the destruction of the Temple (70 C.E.), Jewish law was developed through intensive and expansive interpretation of the written Torah .
Halakhah , the rabbinic Jewish way of life is based on a combined reading of the Torah, and the oral tradition - the Mishnah, the halakhic Midrash, the Talmud and its commentaries. The Halakhah has developed gradually through a variety of legal and quasi-legal mechanisms, including judicial decisions, legislative enactments, and customary law. The literature of questions to rabbis, and their considered answers, is referred to as responsa (in Hebrew, Sheelot U-Teshuvot). Over time, as practices develop, codes of Jewish law were written based on Talmudic literature and responsa. The most important code, the Shulkhan Arukh, largely guides Orthodox and Conservative Judaism's religious practice today.
Christianity
Within the framework of Christianity, there are three possible definitions for law: the Torah/Mosaic Law (see Christian View of the Torah), only the instructions of Jesus (referred to by some as the Law of Christ), and canon law .
The Roman and Eastern Catholic, Orthodox, and Anglican Churches' have organized systems of bylaws known as canon law which are solely for the regulation of the internal affairs of the groups and not how salvation is sought in these churches.
In Christianity, law is often contrasted with grace (see also Law and Gospel): the contrast here speaks to attempts to gain salvation by obedience to a code of laws as opposed to seeking salvation through faith in the atonement made by Jesus on the cross. Compare legalism and antinomianism.
Islam
Muslims in Islamic societies have traditionally viewed Islamic law as essential to their religious outlook. Traditional Islamic law is called Shari`ah .
Imam Ahmad ibn Hanbal (780 - 855 CE) developed Five Basic Juristic Principles. The thought process applied by Ahmad in extrapolation of laws are as follows:
The Quran and the Sunnah were the first point of reference for all scholars of jurisprudence, and in this, Ahmad was not an exception. The Qur'an is the foremost source of Islamic jurisprudence. The Sunnah (the practices of the Prophet, as narrated in reports of his life) is not itself a text like the Qur'an, but is extracted by analysis of the Hadith (Arabic for "report") texts, which contain narrations of the Prophet's sayings, deeds, and actions of his companions he approved.
Verdicts issued by the Companions were resorted to when no textual evidence was found in the Quran or the Sunnah. The reasons for ranking the verdicts of the Companions after the Quran and the Sunnah are obvious: The Companions witnessed the revelation of the Quran, and its implementation by Muhammad. Hence, the Companions ought to have a better understanding than the latter generations. However, in a case where the Companions differed, Ahmad preferred the opinion supported by the Quran and the Sunnah.
In instances where none of the above was applicable, Ahmad would resort to the mursal Hadith with a link missing between the Successor and Muhammad or a weak hadith. However, the type of weak Hadith that Ahmad relied on was such that it may be regarded as fair hadith due to other evidences (Hasan li Ghairihi), not the type that is deemed very weak and thus unsuitable as an evidence for Law. This was due to the fact that, during his time, the Hadith was only categorised into ‘sound’ (sahih) and ‘weak’ (da’if). It was only after Ahmad, that al-Tirmidhi introduced a third category of ‘fair’ (hasan).
Only after having exhausted the aforementioned sources would Imam Ahmad employ analogical deduction (Qiyas) due to necessity, and with utmost care.
The Hanbali school alone maintained its own theological view, unlike the Hanafi school which adopted the Maturidi doctrine, or the Shafi’i and Maliki schools that adopted the Ash’ari doctrine. The copious volume of narrations from Imam Ahmad dealing with specific issues of doctrine made it extremely difficult for his followers to adhere to any other, yet still remain faithful followers.
Hindu Law
Hindu law is largely based on the Manu Smriti or 'Institutions of Manu.' It was recognized by the British after their occupation of India, but its influenced has largely waned in 20th century India with its general policies of secularization .

Chapter Eight
Socialist law
Socialist law is the official name of the legal system used in Socialist states. It is based on the civil law system, with major modifications and additions from Marxist-Leninist ideology. While civil law systems have traditionally put great pains in defining the notion of private property, how it may be acquired, transferred, or lost, Socialist law systems provide for most property to be owned by the state or by agricultural co-operatives, and having special courts and laws for state enterprises.
Prior to the end of the Cold War, Socialist Law was generally ranked among the major legal systems of the world. However, many contemporary observers no longer consider it to be such, due to similarities with the civil law system and the fact that it is no longer in widespread use following the dismantling of most communist states.
Furthermore, many scholars argue that socialist law was simply not a separate legal classification . Although the command economy approach of the communist states meant that property could not be owned, the Soviet Union always had a civil code, courts that interpreted this civil code, and a civil law approach to legal reasoning (thus, both legal process and legal reasoning were largely analogous to the French or German civil code system).
Law of the Soviet Union
The Law of the Soviet Union -also known as Soviet Law, or Socialist Law-was the law that developed in the Soviet Union following the Russian October Revolution of 1917; modified versions of it were adopted by many Communist states (see below) following the Second World War.
Soviet Law had some of the characteristics of civil law systems, including some similar rules of procedure and legal methodologies.
History and influence of Soviet Law
The legal system of the Soviet Union was the principal model followed by other members of the Soviet family of legal systems (Mongolia, the People's Republic of China, the countries of eastern Europe, Cuba and Vietnam being the most notable). This legal system was developed after the Russian Revolution and based on traditional Western civil law, with many elements originating in the Russian legal tradition (going back as far as the 10th century Kievan Rus) and influences from Byzantine secular and canon law .
In 1917, the Soviet authorities formally repealed all Tsarist legislation and began to establish a socialist system with the final aim of reaching communism. The vast majority of Marxist theory concerned itself with matters of politics, economics and sociology, not legislation, and thus "socialist law" had to be built from scratch, using mostly non-Marxist legal theory. A few general guidelines were laid out. First, the new legal system should eliminate the political power and dominance of the bourgeoisie; second, law should be the instrument of the state and the people, not a restriction to policy-makers; third, law should establish rules of public order which ease the state's transition into socialism and eventually communism; and fourth, law should educate citizens in how they can help to build a communist social system. This is the basis on which Soviet Law was constructed.
The structure of a Soviet court
Soviet Law did not use an adversarial system, in which a plaintiff and defendant argue before a neutral judge. Instead, court proceedings in the Soviet Union included a judge, a procurator, a defense attorney and two people's assessors, and allowed for free participation by the judge. This same system was used for all cases, due to a lack of distinction between civil and criminal law.
Judges kept legal technicalities to a minimum; the court's stated purpose was to find the truth, rather than to protect legal rights. Other aspects of Soviet Law more closely resembled the Anglo-Saxon system. In theory, all citizens were equal before the law—defendants could appeal to a higher court if they believed their sentence to be too harsh. However, the procurator could also appeal if he/she considered the sentence to be too lenient. Soviet Law also guaranteed defendants the right to legal representation, and the right to be tried in their native language, or to use an interpreter. Although most hearings were open to the public, hearings could also be held privately, if the Soviet Government deemed it necessary.
Chinese Socialist law
Among the remaining communist governments, some (most notably the People's Republic of China) have added extensive modifications to their legal systems. In general, this is a result of their market-oriented economic changes. However, some communist influence can still be seen - for example, in Chinese real estate law there is no unified concept of real property; the state owns all land but often not the structures that sit on that land. A rather complex ad-hoc system of use rights to land property has developed, and these use rights are the things being officially traded (rather than the property itself). In some cases the system results in something that resembles real property transactions in other legal systems.
In other cases, the Chinese system results in something quite different. For example, it is a common misconception that reforms under Deng Xiaoping resulted in the privatization of agricultural land and a creation of a land tenure system similar to those found in Western countries. In actuality, the village committee owns the land and contracts the right to use this land to individual farmers who may use the land to make money from agriculture. Hence the rights that are normally unified in Western economies are split up between the individual farmer and the village committee .
This has a number of consequences. One of them is that because the farmer does not have an absolute right to transfer the land, he cannot borrow against his use rights. On the other hand, there is some insurance against risk in the system, in that the farmer can return his land to the village committee if he wants to stop farming and start some other sort of business. Then, if this business does not work, he can get a new contract with the village committee and return to farming. The fact that the land is redistributable by the village committee also ensures that no one is left landless and creates a form of social welfare.
There have been a number of proposals to reform this system and they have tended to be in the direction of fully privatizing rural land for the alleged purpose of increasing efficiency. These proposals have usually not received any significant support, largely because of the popularity of the current system among the farmers themselves. There is little risk that the village committee will attempt to impose a bad contract on the farmers, since this would reduce the amount of money the village committee receives. At the same time, the farmer has some flexibility to decide to leave farming for other ventures and to return at a later time.





Part Three
Legal subjects

Chapter Nine
Sources of law

There are three main sources of law;
Legislation
Legislation or "statutory law" is law which has been promulgated or "enacted" by a legislature or other governing body. The term may refer to a single law, or the collective body of enacted law, while "statute" is also used to refer to a single law. Before an item of legislation becomes law it may be known as a bill, which is typically also known as "legislation" while it remains under active consideration.
In some jurisdictions, legislation must be confirmed by the executive branch of government before it enters into force as law.
Legislation is usually proposed by a member of the legislature (e.g. a member of Congress or Parliament) , or by the executive, whereupon it is debated by members of the legislature and is often amended before passage. Most large legislatures enact only a small fraction of the bills proposed in a given session. Whether a given bill will be proposed and enter into force is generally a matter of the legislative priorities of government.
Those who have the formal power to create legislation are known as legislators, while the judicial branch of government may have the formal power to interpret legislation.
Alternate means of law-making
The act of making legislation is sometimes known as legislating. Under the doctrine of separation of powers, the law-making function is primarily the responsibility of the legislature. However, there are situations where legislation is enacted by other means (most commonly when constitutional law is enacted). These other forms of law-making include referendums and constitutional conventions. The term "legislation" is sometimes used to describe these situations, but other times, the term is used to distinguish acts of the legislature from these other lawmaking forms.
The interpretation of law by the executive branch or the judiciary has been contended by some to be law-making, particularly when the judicial branch must address laws that appear to conflict (such as constitutional and statutory law). The extent to which the courts may be seen to "legislate" in this manner informs the ongoing contemporary debate concerning judicial activism (which may be contrasted with judicial restraint). Judicial law-making is not generally referred to as "legislation", however, except ironically. Also, some country's laws will empower the executive branch or other government agency to issue regulations or decrees which can carry the force of law, although this is also generally not considered legislation, per se. Legislation can also be created at provincial and local levels of government (which have their own legislatures), where separation of powers may be less formal and complete.
Legislative history
The record of events and public statements of legislators that explain the reasons for the law and its expected meaning are called "legislative history". Often, this will include formal speeches or writings made by the bill's sponors and chief critics. Courts often refer to legislative history in interpreting legislation, in order to discern "legislative intent" - or what legislators meant for the law to mean. However, there is a prevalent minority view among some judges that laws should be interpreted solely according to their text, and without regard to legislative intent. This debate is complicated by the fact that legislators will sometimes craft the text of a law to be intentionally obscure or vague as part of a political compromise, and that in a large legislative body, most of those who vote in favor of a bill will not have read the bill's full legislative history, or, indeed, the bill itself.

Custom
law, custom can be described as the established patterns of behavior that can be objectively verified within a particular social setting . Generally, customary law exists where:
- a certain legal practice is observed
- the relevant actors consider it to be law
Customary law and codification
The modern codification of civil law developed out of the customs, expressions of law that developed in particular communities and slowly collected and written down by local jurists. Such customs acquired the force of law when they became the undisputed rule by which certain entitlements (rights) or obligations were regulated between members of a community.
International law
In international law, customary law refers to the Law of Nations or the legal norms that have developed through the customary exchanges between states over time, whether based on diplomacy or aggression. Essentially, legal obligations are believed to arise between states to carry out their affairs consistently with past accepted conduct. These customs can also change based on the acceptance or rejection by states of particular acts. Some principles of customary law have achieved the force of peremptory norms, which cannot be violated or altered except by a norm of comparable strength. These norms are said to gain their strength from universal acceptance, such as the prohibitions against genocide and slavery. Customary international law can be distinguished from treaty law, which consists of explicit agreements between nations to assume obligations. However, many treaties are attempts to codify pre-existing customary law.
Customary law within contemporary legal systems
Customary law may also be relevant within jurisdictions following another legal tradition such as civil law in fields or subfields of law where no legislative enactment exists. For example, in Austria, scholars of private law often claim that customary law continues to exist, whereas public law scholars dispute this claim. In any case, it is hard to find any practically relevant examples. In the Scandinavian countries customary law continues to exist and has great influence. Customary law is also used in some Third World countries, such as in Africa, usually used alongside common or civil law.
Custom in torts
Custom is used in tort law to help determine negligence. Following or disregarding a custom is not determinative of negligence, but instead is an indication of possible best practices or alternatives to a particular action.
religious habit
religious habit is a distinctive set of garments worn by members of a religious order. For instance, for some Roman Catholic or Anglican orders, it might comprise a tunic covered by a scapular and cowl, with a hood for men and a veil for women; in other orders it might be a distinctive form of cassock for men, or a distinctive dress and bonnet for women. Modern habits sometimes take the form of a distinctive clerical suit for men and a simple dress suit for women. Catholic Canon Law requires only that it be in some way identifiable so that the person may serve as a witness to Gospel values, simple as a mark of detachment from vanity and greed, and becoming.
In many orders, the mark of the end of postulancy and the beginning of the novitiate in a particular religious community is a ceremony during which the new novice, having formally requested admission to the community, is clothed in the community's habit by the superior. In some cases the novice's habit will be somewhat different from the habit of a member under vows: for instance, in certain orders of women where the veil still forms part of the habit it is common for novices to wear a white veil while professed members wear black; among some Franciscan communities of men, novices wear a sort of overshirt over their tunic.


Chapter Ten
Classification of law

Though all legal systems deal usually with the same or 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, property). 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", although there are many further disciplines which might be of greater practical importance.

Public international law
Public international law concerns the structure and conduct of states and international organizations. To a lesser degree, international law also affects multinational corporations and individuals, an impact increasingly evolving beyond domestic legal interpretation and enforcement. Public international law has increased in use and importance vastly over the twentieth century, due mainly to the increase in global trade, armed conflict, environmental deterioration on a worldwide scale, human rights violations, rapid and vast increases in international transportation and a boom in global communications.
Public international law is sometimes called the "law of nations". It should not be confused with "private international law", which is concerned with the resolution of conflict of laws. In its most general sense, international law "consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical."
The scope of public international law
Public international law establishes the framework and the criteria for identifying states as the principal actors in the international legal system. As the existence of a state presupposes control and jurisdiction over territory, international law deals with the acquisition of territory, state immunity and the legal responsibility of states in their conduct with each other. International law is similarly concerned with the treatment of individuals within state boundaries. There is thus a comprehensive regime dealing with group rights, the treatment of aliens, the rights of refugees, international crimes, nationality problems, and human rights generally. It further includes the important functions of the maintenance of international peace and security, arms control, the pacific settlement of disputes and the regulation of the use of force in international relations. Even when the law is not able to stop the outbreak of war, it has developed principles to govern the conduct of hostilities and the treatment of prisoners. International law is also used to govern issues relating to the global environment, the global commons such as international waters and outer space, global communications, and world trade.
Whilst municipal law is hierarchical or vertical in its structure (meaning that a legislature enacts binding legislation), international law is horizontal in nature. This means that all states are sovereign and theoretically equal. As a result of the notion of sovereignty, the value and authority of international law is dependent upon the voluntary participation of states in its formulation, observance, and enforcement. Although there may be exceptions, it is thought by many international academics that most states enter into legal commitments with other states out of enlightened self-interest rather than adherence to a body of law that is higher than their own. As D. W. Greig notes, "international law cannot exist in isolation from the political factors operating in the sphere of international relations".
Breaches of international law raise difficult questions for lawyers. Since international law has no established compulsory judicial system for the settlement of disputes or a coercive penal system, it is not as straightforward as managing breaches within a domestic legal system. However, there are means by which breaches are brought to the attention of the international community and some means for resolution. For example, there are judicial or quasi-judicial tribunals in international law in certain areas such as trade and human rights. The formation of the United Nations, for example, created a means for the world community to enforce international law upon members that violate its charter through the Security Council.
Traditionally, states and the Holy See were the sole subjects of international law. With the proliferation of international organizations over the last century, they have in some cases been recognized as relevant parties as well. Recent interpretations of international human rights law, international humanitarian law, and international trade law (e.g., North American Free Trade Agreement (NAFTA Chapter 11 actions) have been inclusive of corporations, and even of certain individuals.
Fundamental conflicts
The 17th , 18th and 19th centuries saw the growth of the concept of a "nation-state", which comprised nations controlled by a centralized system of government. The concept of nationalism became increasingly important as people began to see themselves as citizens of a particular nation with a distinct national identity. Until the beginning of the 20th century, relations between nation-states were dictated by Treaty, unenforceable agreements to behave in a certain way towards another state. Many people now view the nation-state as the primary unit of international affairs. States may choose to voluntarily enter into commitments under international law, but they will often follow their own counsel when it comes to interpretation of their commitments. As the 20th century progressed, a number of violent armed conflicts, including World War I and World War II, exposed the weaknesses of a voluntary system of international treaties. In an attempt to create a stronger system of laws to prevent future conflicts, a vehicle for the application of international law was found in the creation of the United Nations, an international law making body, and new international criminal laws were applied at the Nuremberg trials. Over the past fifty years, more international laws and law making bodies have been created.
Many people feel that these modern developments endanger nation states by taking power away from state governments and ceding it to international bodies such as the U.N. and the World Bank. Some scholars and political leaders have recently argued that international law has evolved to a point where it exists separately from the mere consent of states. There is a growing trend toward judging a state's domestic actions in the light of international law and standards.
A number of states, notably the United States (but also China, Russia and India), vehemently oppose this interpretation, maintaining that sovereignty is the only true international law and that states have free rein over their own affairs. Similarly, a number of scholars now discern a legislative and judicial process to international law that parallels such processes within domestic law. Opponents to this point of view maintain that states only commit to international law with express consent and have the right to make their own interpretations of its meaning; and that international courts only function with the consent of states. Because international law is a relatively new area of law its development is uncertain and its relevance and propriety is hotly disputed.
Sources
Public international law has three primary sources: international treaties, custom, and general principles of law . International treaty law comprises obligations states expressly and voluntarily accept between themselves in treaties. Customary international law is derived from the consistent practice of States accompanied by opinio juris, i.e. the conviction of States that the consistent practice is required by a legal obligation. Judgments of international tribunals as well as scholarly works have traditionally been looked to as persuasive sources for custom in addition to direct evidence of state behavior (and they are also explicitly mentioned as such in Art. 38 of the Statute of the International Court of Justice). Attempts to codify customary international law picked up momentum after the Second World War with the formation of the International Law Commission (ILC), under the aegis of the United Nations. Codified customary law is made the binding interpretation of the underlying custom by agreement through treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to those states. General principles of law are those commonly recognized by the major legal systems of the world. Certain norms of international law achieve the binding force of peremptory norms (jus cogens) as to include all states with no permissible derogations.
Branches of public international law
• International criminal law
• The law pertaining to use of force
• International human rights law
• International Humanitarian Law
• Law of the sea
• Diplomatic law
• Consular law
• Law of State Responsibility
• International Environmental Law
• International trade law
• International Space Law
• International Aviation law

Constitutional law
Constitutional law is the study of foundational or basic laws of nation states and other political organizations. Constitutions are the framework for government and may limit or define the authority and procedure of political bodies to execute new laws and regulations.
Types of constitution
Not all nation states have codified constitutions, though all such states have a jus commune, or law of the land, that may consist of a variety of imperative and consensual rules. These may include customary law, conventions, statutory law, judge made law or international rules and norms. A common error is to refer to countries, for instance, the United Kingdom, as having an "unwritten constitution". In fact, the "constitution" is written in a vast body of books, statutes and law reports. Just, it may not be codified into a single document, such as the Grundgesetz or the U.S. Constitution. On the other hand, some communities may lack any constitution at all, because of the complete absence of law and order. These are referred to as failed nation states .
Functions of constitutions
Constitutional laws may often be considered second order rulemaking or rules about making rules of exercise power. It governs the relationships between the judiciary, the legislature and the executive with the bodies under its authority. One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power. For example, in a unitary state, the constitution will vest ultimate authority in one central administration and legislature, and judiciary, though there is often a delegation of power or authority to local or municipal authorities. When a constitution establishes a federal state, it will identify the several levels of government coexisting with exclusive or shared areas of jurisdiction over lawmaking, application and enforcement .
Human rights
Human rights or civil liberties form a crucial part of a country's constitution and govern the rights of the individual against the state. Most jurisdictions, like the United States and France, have a single codified constitution, with a Bill of Rights. A recent example is the Charter of Fundamental Rights of the European Union which was intended to be included in the Treaty establishing a Constitution for Europe, that failed to be ratified. Perhaps the most important example is the Universal Declaration of Human Rights under the UN Charter. These are intended to ensure basic political, social and economic standards that a nation state, or intergovernmental body is obliged to provide its citizens with.
Some countries like the United Kingdom, have no entrenched document setting out fundamental rights; in those jurisdictions the constitution is composed of statute, case law and convention. A case named Entick v. Carrington[1] illustrates a constitutional principle deriving from the common law. Mr Entick's house was searched and ransacked by Sherriff Carrington. Carrington argued that a warrant from a Government minister, the Earl of Halifax was valid authority, even though there was no statutory provision or court order for it. The court, led by 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. By the laws of England, every invasion of private property, be it ever so minute, is a trespass... 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."
Inspired by John Locke, the fundamental constitutional principle is that the individual can do anything but that which is forbidden by law, while the state may do nothing but that which is authorised by law.
Legislative procedure
Another main function of constitutions may be to describe the procedure by which parliaments may legislate. For instance, special majorities may be required to alter the constitution. In bi-cameral legislatures, there may be a process laid out for second or third readings of bills before a new law can enter into force. Alternatively, there may further be requirements for maximum terms that a government can keep power before holding an election.
Administrative law
Administrative law (or regulatory law) is the body of law that arises from the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. As a body of law, administrative law deals with the decision-making of administrative units of government (e.g., tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport. Administrative law expanded greatly during the twentieth century, as legislative bodies world-wide created more government agencies to regulate the increasingly complex social, economic and political spheres of human interaction.

Criminal law

Criminal law is the body of law that defines criminal offences and the penalties for convicted offenders. Apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure. In every jurisdiction, a crime is committed where two elements are fulfilled. First, the criminal must have the requisite malicious intent to do a criminal act, or mens rea (guilty mind) . Second, he must commit the criminal act, or actus reus (guilty act). 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, 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 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 .

Criminal law offences are viewed as offences against not just individual victims, but the community as well. 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 have capital punishment and corporal 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. On the international field, 104 countries have signed the enabling treaty for the International Criminal Court, which was established to try people for crimes against humanity .

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. Under negligence law, the most common form of tort, the injured party can make a claim against the party responsible for the injury. The principles of negligence are illustrated by Donoghue v. Stevenson. Mrs Donoghue ordered an opaque bottle of ginger beer in a café in Paisley. Having consumed half of it, she poured the remainder into a tumbler. The decomposing remains of a dead snail floated out. She fell ill 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."

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 Another example of tort might be a neighbour making excessively loud noises with machinery on his property.[28] 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. More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes,[30] when statute does not provide immunity.

Private International Law
International Law, Private, that part of the law of a country that applies to cases involving foreign law.
Concerns
Private international law is concerned with various matters that are handled by a court of law in the following order. (1) The court must first decide whether or not it has jurisdiction in a case involving foreign elements—for example, a case that involves a contract made or fulfilled abroad or a case in which judicial determination has already been made in another country. (2) Once the court has assumed jurisdiction, it must decide whether to apply the laws of its own country or that of the foreign country involved. (3) The court must determine the circumstances under which decisions of a foreign court are to be upheld. (4) The court must determine the validity of contracts, testaments, marriages, divorces, adoptions, and acts other than court decisions made in foreign countries in accord with the laws of those countries .
These determinations are made by a court under statutes enacted by the national legislature of the country in which it is situated. Such statutes comprise an integral part of the law of that country. To the extent, however, that these statutes provide for the enforcement of the laws of foreign countries, they are part of international law—hence the designation “private international law.” To the extent the statutes relate to the determination of conflicting laws based on diverse national origins, they are said to relate to the conflict of law.
Recognition of judgments
In general international practice, whenever the recognition of foreign laws or of foreign legal acts is specifically prohibited by statute or would result in unconscionable injury or contravene the public policy of a nation, the courts of that country do not grant such recognition. For example, U.S. courts refused to recognize decrees issued by the National Socialist government of Germany just prior to World War II by which American-owned private property was confiscated and matured obligations of German companies held by U.S. citizens were repudiated.
The judgments of duly constituted courts are usually recognized and enforced in a foreign country, subject only to scrutiny as to irregularity, fraud, or lack of jurisdiction. According to Article IV of the U.S. Constitution, each state must give full force and effect to the actions of all the other states. In contrast, no state of the U.S. is compelled to recognize specific foreign decrees unless they are covered by treaties of the U.S. Foreign judgments of divorce will generally be accepted if one of the parties was residing in the country in which the decree was granted. Certain U.S. courts also accept a foreign divorce, even if neither party was residing in that country, but both parties submitted to the jurisdiction of the foreign court and were duly granted the divorce in accordance with its laws.

Property law

Property law governs everything that people call 'theirs'. 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 and sandwiches, or intangible rights, such as stocks and shares. A right 'in rem' is a right to a specific piece of property. If an individual loses his computer and another finds it and it changes hands, a right in rem gives the individual the ability to take the computer from whoever has it. A right 'in personam' however is a right against one specific individual for something equivalent to the property in question. If an individual loses his computer and it passes hands, the right in personam allows the individual to claim the price of the computer from the thief (but not the actual computer, as this might now belong to someone else.) The classic civil law approach to property, propounded by Friedrich Carl von Savigny, is that it is a right good against the world. This contrasts to an obligation, like a contract or tort, which is a right good between individuals. Preferred in common law jurisdictions is an idea closer to an obligation; that the person who can show the best claim to a piece of property, against any contesting party, is the owner. The idea of property raises important philosophical and political issues. John Locke famously argued that our "lives, liberties and estates" are our property because we own our bodies and mix our labour with our surroundings. The idea of privately owned property is still contentious. French philosopher Pierre Proudhon once famously wrote, "property is theft".

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 registration of land. Regulations on the use of personal property fall under intellectual property, company law, trusts and commercial law.

Trusts and equity

Equity is a body of rules that developed in England separately from the "common law" . The common law was administered by judges, whilst the Lord Chancellor, 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 trust In the early case of Keech v. Sandford 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."

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 , 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 flow into one another.

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 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 and the U.S. Bill of Rights.
- Civil procedure and criminal procedure concern the rules that courts must follow as a trial and appeals proceed. Both concern everybody'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 of course the 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 U.S. Uniform Commercial Code are examples of codified common law commercial principles.
- Company law sprung from the law of trusts, on the principle of separating ownership of property and control.[42] 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 deals with patents, trademarks and copyrights. These are intangible assets: the right to protect your invention from imitation, your brand name from appropriation, or a song you wrote from performance and plagiarism.
- 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.
- Regulated industries are attached to an important body of law, for instance water law, for the provision of public services. 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 imminent danger of climate change. Environmental protection also serves to penalise polluters within domestic legal systems.


Chapter Eleven
Contracts
contract is a legally binding exchange of promises or agreement between parties that the law will enforce. Contract law is based on the Latin phrase pacta sunt servanda (agreements must be kept). Breach of contract is recognized by the law and remedies can be provided. Almost everyone makes contracts everyday. Sometimes written contracts are required, e.g., when buying a house. However the vast majority of contracts can be and are made orally, like buying a law text book, or a coffee at a shop. Contract law can be classified, as is habitual in civil law systems, as part of a general law of obligations .
Contractual formation
In common law jurisdictions there are three key elements to the creation of a contract. These are offer and acceptance, consideration and an intention to create legal relations . In civil law systems the concept of consideration is not central. In addition, for some contracts formalities must be complied with under what is sometimes called a statute of frauds.
Offer and acceptance
Perhaps the most important feature of a contract is that one party makes an offer for a bargain that another accepts. This can be called a 'concurrence of wills' or a 'meeting of the minds' of two or more parties. There must be evidence that the parties had each from an objective perspective engaged in conduct manifesting their assent, and a contract will be formed when the parties have met such a requirement . An objective perspective means that it is only necessary that somebody gives the impression of offering or accepting contractual terms in the eyes of a reasonable person, not that they actually did want to contract.
Offer and acceptance does not always need to be expressed orally or in writing. An implied contract is one in which some of the terms are not expressed in words. This can take two forms. A contract which is implied in fact is one in which the circumstances imply that parties have reached an agreement even though they have not done so expressly. For example, by going to a doctor for a checkup, a patient agrees that he will pay a fair price for the service. If he refuses to pay after being examined, he has breached a contract implied in fact.
Consideration
Consideration is a controversial requirement for contracts under common law (for example money). It is not necessary in civil law systems, and for that reason has come under increasing criticism. The idea is that both parties to a contract must bring something to the bargain. This can be either conferring an advantage on the other party, or incurring some kind of detriment or inconvenience. Three rules govern consideration.
• Consideration must be sufficient, but need not be adequate. For instance, agreeing to buy a car for a penny may constitute a binding contract. While consideration need not be adequate, contracts in which the consideration of one party greatly exceeds that of another may nevertheless be held invalid for lack of sufficient consideration. In such cases, the fact that the consideration is exceedingly unequal can be evidence that there was no consideration at all. Such contracts may also be held invalid for other reasons such as fraud, duress, unequal bargaining power, or contrary to public policy. In some situations, a collateral contract may exist, whereby the existence of one contract provides consideration for another. Critics say consideration can be so small as to make the requirement of any consideration meaningless.
• Consideration must not be from the past. For instance, in Eastwood v. Kenyon, the guardian of a young girl raised a loan to educate the girl and to improve her marriage prospects. After her marriage, her husband promised to pay off the loan. It was held that the guardian could not enforce the promise as taking out the loan to raise and educate the girl was past consideration, because it was completed before the husband promised to repay it.
• Consideration must move from the promisee. For instance, it is good consideration for person A to pay person C in return for services rendered by person B. If there are joint promises, then consideration need only to move from one of the promises.
Formalities and writing
Contrary to common wisdom, an informal exchange of promises can still be binding and legally as valid as a written contract. A spoken contract should be called an oral contract, which might considered a subset of verbal contracts. Any contract that uses words, spoken or written, is a verbal contract. Thus, all oral contracts and written contracts are verbal contracts.
If a contract is in a written form, and somebody signs the contract, then the person is bound by its terms regardless of whether they have read it or not, provided the document is contractual in nature. Furthermore, if a party wishes to use a document as the basis of a contract, reasonable notice of its terms must be given to the other party prior to their entry into the contract .This includes such things as tickets issued at parking stations.
Contractual terms
A contractual term is "any provision forming part of a contract" Each term gives rise to a contractual obligation, breach of which can give rise to litigation. Not all terms are stated expressly and some terms carry less legal gravity as they are peripheral to the objectives of the contract.
Classification of Term
• Condition or Warranty Conditions are terms which go to the very root of a contract. Breach of these terms repudiate the contract,allowing the other party to discharge the contract. A warranty is not so imperative so the contract will subsist after a breach. Breach of either will give rise to damages.
• Innominate term:It is the concept of an innominate term, breach of which may or not go to the root of the contract depending upon the nature of the breach. Breach of these terms, as with all terms, will give rise to damages. Whether or not it repudiates the contract depends upon whether legal benefit of the contract has been removed from the innocent party.
Status as a term
Status as a term is important as a party can only take legal action for the non fulfillment of a term as opposed to representations or mere puffs. Legally speaking only statements that amount to a term create contractual obligations. There are various factor that a court may take into account in determining the nature of a statement
Implied Terms
A Term may either be expressed or implied. An Express term is stated by the parties during negotiation or written in a contractual document. Implied terms are not stated but nevertheless form a provision of the contract .
Misrepresentation
Misrepresentation means a false statement of fact made by one party to another party and has the effect of inducing that party into the contract. For example, under certain circumstances, false statements or promises made by a seller of goods regarding the quality or nature of the product that the seller has may constitute misrepresentation. A finding of misrepresentation allows for a remedy of rescission and sometimes damages depending on the type of misrepresentation.
Mistake
A mistake is an incorrect understanding by one or more parties to a contract and may be used as grounds to invalidate the agreement. Common law has identified three different types of mistake in contract: unilateral mistake, mutual mistake, and common mistake.
• A unilateral mistake is where only one party to a contract is mistaken as to the terms or subject-matter. The courts will uphold such a contract unless it was determined that the non-mistaken party was aware of the mistake and tried to take advantage of the mistake.
• A common mistake is where both parties hold the same mistaken belief of the facts. Duress and
Damages
There are four different types of damages.
• Compensatory damages which are given to the party which was detrimented by the breach of contract. With compensatory damages, there are two kinds of branches, consequential damages and direct damages.
• Nominal damages which include minimal dollar amounts (often sought to obtain a legal record of who was at fault).
• Punitive damages which are used to punish the party at fault. These are not usually given regarding contracts but possible in a fraudulent situation.
• Exemplary damages which are used to make an example of the party at fault to discourage similar crimes. Fines can be multiplied by factors of up to 50 for such damages.
Third Parties
The doctrine of privity of contract means that only those involved in striking a bargain would have standing to enforce it. In general this is still the case, only parties to a contract may sue for the breach of a contract, although in recent years the rule of privity has eroded somewhat and third party beneficiaries have been allowed to recover damages for breaches of contracts they were not party to .

Chapter Twelve
Legislative Authority

The main institutions of law in industrialized countries are independent courts, representative parliaments, an accountable executive.
The separation of powers between the institutions that wield political influence, namely the judiciary, legislature and executive. Their principle was that no person should be able to usurp all powers of the state, in contrast to the absolutist theory of Thomas Hobbes'. More recently, Max Weber and many others reshaped thinking about the extensions of the state that come under the control of the executive.
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modelled after that of the United Kingdom. The name is derived from the French parlement, the action of parler (to speak): a parlement is a talk, a discussion, hence a meeting (an assembly, a court) where people discuss matters .
Parliamentary government
Legislatures called parliaments typically operate under a parliamentary system of government in which the executive is constitutionally answerable to the parliament. This can be contrasted with a presidential system, on the model of the United States' congressional system, which operate under a stricter separation of powers whereby the executive does not form part of, nor is appointed by, the parliamentary or legislative body. Typically, congresses do not select or dismiss heads of governments, and governments cannot request an early dissolution as may be the case for parliaments. Some states have a semi-presidential system which combines a powerful president with an executive responsible to parliament
Parliaments may consist of chambers or houses, and are usually either bicameral or unicameral - although more complex models exist, or have existed .
The lower house is almost always the originator of legislation, and the upper house is usually the body that offers the "second look" and decides whether to veto or approve the bills.
A parliament's lower house is usually composed of at least 200 members in countries with populations of over 3 million. A notable exception is Australia, which has only 150 members in the lower house despite having a population of over 20 million.
The number of seats may exceed 400 in very large countries, especially in the case of unitary states. The upper house customarily has 20, 50, or 100 seats, almost always significantly fewer than the lower house (the British House of Lords is an exception) .
A nation's prime minister (PM) is almost always the leader of the majority party in the lower house of parliament, but only holds his or her office as long as the "confidence of the house" is maintained. If members of parliament lose faith in the leader for whatever reason, they can often call a vote of no confidence and force the PM to resign. This can be particularly dangerous to a government when the distribution of seats is relatively even, in which case a new election is often called shortly thereafter.
Origins of parliamentary government
England
The Curia Regis in England was a council of tenants-in-chief and ecclesiastics that advised the King of England on legislative matters. It replaced its Anglo-Saxon predecessor, the Witenagemot, a popular assembly that developed into a sort of crown council, after the Norman invasion of 1066.
William of Normandy brought to England the feudal system of his native Normandy, and sought the advice of the curia regis, before making laws. This body is the germ from which Parliament, the higher courts of law, and the Privy Council and Cabinet have sprung. Of these, the legislature is formally the High Court of Parliament; judges sit in the Supreme Court of Judicature; and only the executive government is no longer conducted in a royal court .
The tenants-in-chief often struggled with their spiritual counterparts and with the King for power. In 1215, they secured from John the Magna Carta, which established that the King may not levy or collect any taxes (except the feudal taxes to which they were hitherto accustomed), save with the consent of a council. It was also established that the most important tenants-in-chief and ecclesiastics be summoned to the council by personal writs from the Sovereign, and that all others be summoned to the council by general writs from the sheriffs of their counties. Modern government has its origins in the Curiae Regis; parliament descends from the Great Council later known as the parliamentum established by Magna Carta.
The first English Parliament was formed during the reign of King Henry III in the 13th century. In 1265, Simon de Montfort, 6th Earl of Leicester, who was in rebellion against Henry III, summoned a parliament of his supporters without any or prior royal authorisation. The archbishops, bishops, abbots, earls and barons were summoned, as were two knights from each shire and two burgesses from each borough. Knights had been summoned to previous councils, but the representation of the boroughs was unprecedented. De Montfort's scheme was formally adopted by Edward I in the so-called "Model Parliament" of 1295. At first, each estate debated independently; by the reign of Edward III, however, Parliament had been separated into two Houses and was assuming recognisably its modern form.
France
Originally, there was only the Parlement of Paris, born out of the Curia Regis in 1307, and located inside the medieval royal palace, now the Paris Hall of Justice. The jurisdiction of the Parlement of Paris covered the entire kingdom. In the thirteenth century, judicial functions were added. In 1443, following the turmoil of the Hundred Years' War, King Charles VII of France granted Languedoc its own parlement by establishing the Parlement of Toulouse, the first parlement outside of Paris, whose jurisdiction extended over the most part of southern France. From 1443 until the French Revolution several other parlements were created in some provinces of France.
All the parlements could issue regulatory decrees for the application of royal edicts or of customary practices; they could also refuse to register laws that they judged contrary to fundamental law or simply as being untimely. Parliamentary power in France was suppressed more so than in England as a result of absolutism, and parliaments were eventually overshadowed by the larger Estates General, up until the French Revolution, when the National Assembly became the lower house of France's bicameral legislature. (The Sénat being the upper house) .
Russia
The name of the parliament of Russia is the Federal Assembly of Russia. The term for its lower house, Duma (which is better known than the Federal Assembly itself, and is often mistaken for the entirety of the parliament) comes from the Russian word думать (dumat), "to think". The Boyar Duma was an advisory council to the grand princes and tsars of Muscovy. The Duma was discontinued by Peter the Great, who transferred its functions to the Governing Senate in 1711 .
Parliament of the United Kingdom
The British Parliament is often referred to as the Mother of Parliaments (in fact a misquotation of John Bright, who remarked in 1865 that "England is the Mother of Parliaments" because the British Parliament has been the model for most other parliamentary systems, and its Acts have created many other parliaments. Many nations with parliaments have to some degree emulated the British "three-tier" model. Most countries in Europe and the Commonwealth have similarly organized parliaments with a largely ceremonial head of state who formally opens and closes parliament, a large elected lower house and a smaller, upper house.
The Parliament of the United Kingdom was originally formed in 1707 by the Acts of Union that replaced the former parliaments of England and Scotland - the Irish Parliament was subsumed into the Imperial Parliament in 1801.
In the United Kingdom, Parliament consists of the House of Commons, the House of Lords, and the Monarch. The House of Commons is composed of over 600 members who are directly elected by British citizens to represent single-member constituencies. The leader of a Party that wins more than half the seats or less than half but can count on support of smaller parties to achieve enough support to pass law is invited by the Queen to form a government. Legally the Queen is the head of government and no business in Parliament can be taken without her authority. The House of Lords is a body of long-serving, unelected members: 92 of whom inherit their seats and 574 of whom have been appointed to lifetime seats.
Legislation can originate from either the Lords or the Commons . It is voted on in several distinct stages, called readings, in each house. First reading is merely a formality. Second reading is where the bill as a whole is considered. Third reading is detailed consideration of clauses of the bill. In addition to the three readings a bill also goes through a committee stage where it is considered in great detail. Once the bill has been passed by one house it goes to the other and essentially repeats the process. If after the two sets of readings there are disagreements between the versions that the two houses passed it is returned to the first house for consideration of the amendments made by the second. If it passes through the amendment stage Royal Assent is granted and the bill becomes law as an Act of Parliament.
The House of Lords is the less powerful of the two houses as a result of the Parliament Acts of 1911 and 1949. These Acts removed the veto power of the Lords over a great deal of legislation. If a bill is certified by the Speaker of the House of Commons as a money bill (i.e. acts raising taxes and similar) then the Lords can only block it for a month. If an ordinary bill originates in the Commons the Lords can only block it for a maximum of one session of Parliament. The exceptions to this rule are things like bills to prolong the life of a Parliament beyond five years. If a bill originates in the Lords then the Lords can block it for as long as they like.
In addition to functioning as the second chamber of Parliament, the House of Lords is also the final court of appeal for much of the law of the United Kingdom - a combination of judicial and legislative function that recalls its origin in the Curia Regis .
National Assembly
The National Assembly is either a legislature, or the lower house of a bicameral legislature in some countries. The best known National Assembly, and the first legislature to be known by this title, was that established during the French Revolution in 1789, known as the Assemblée nationale. Consequently, the name is particularly common in Francophone countries, but is also found in some Commonwealth countries. In Germany, a Nationalversammlung was elected following the revolutions of 1848-1849 and 1918-1919, to be replaced by a permanent parliament (Reichstag) later .
It was also the name of the legislature during France's First Republic and the Consulate, and since 1946 has been the lower house of the French parliament, first under the Fourth Republic, and from 1958, the Fifth Republic.
Congress
In politics, a congress "a gathering of people" is the name of the main legislative body in a state that operates under a congressional system of government. In non-political usage congress is a term applied to a large national or international grouping of people meeting together with common interests or concerns, e.g. an academic conference.



Chapter Thirteen
Executive Authority
In political science and constitutional law, the executive is the branch of government responsible for the day-to-day management of the state. In many countries, it is referred to simply as the "government", but this usage can be confusing in an international context. Under the doctrine of the separation of powers, the executive is not supposed to make laws (role of the legislature), nor to interpret them (role of the judiciary): in practice, this separation is rarely absolute. The executive is identified by the Head of Government. In a presidential system, this person (the President) may also be the Head of State, whereas in a parliamentary system he or she is usually the leader of the largest party in the legislature as is most commonly termed the Prime Minister (Taoiseach in the Republic of Ireland, (Federal) Chancellor in Germany and Austria). In France, executive power is shared between the President and the Prime Minister and this system has been reproduced in a number of former French colonies, while Switzerland and Bosnia and Herzegovina likewise have collegiate systems for the role of Head of State and Government. The Head of Government is assisted by a number of ministers, who usually have responsibilities for particular areas (e.g. health, education, foreign affairs), and by a large number of government employees or civil servants .
Head of government
The head of government is the chief officer of the executive branch of a government .
In parliamentary systems, the head of government is generally the Prime Minister, who usually heads a cabinet which most rely on the direct or indirect support of parliament. In essence, the Prime Minister is the leader of the largest elected party in a parliament. In Westminster Systems, like the United Kingdom, Canada or Australia, executive authority is nominally and theoretically vested in the Sovereign. However the Sovereign does not actively exercise executive powers, since this is performed by a Prime Minister and a Cabinet on her behalf.
Other countries have presidential systems, such in the United States of America. In Article II, Section 1, of the United States Constitution it is stated that, "The executive power shall be vested in a president of the United States of America." This makes the president the head of the executive branch of the federal government. To become president, a person must be at least thirty-five years old, a natural born American citizen, and a resident of the United States for at least fourteen years.
Semi-presidential systems may exist in some countries, and often have both a President and a Prime Minister. Such systems can be seen in countries such as France. However, the balance of power between the two heads of government may vary, and it is dependent on the country in question. Sri Lanka has witnessed a bitter power struggle between its President and Prime Minister, particularly due to a difference in political parties.
Role of the executive
The exact role of the executive depends on the constitution of the country. Not all of the following functions need be exercised by the central executive, particularly in federal countries: they may instead be exercised by local government .
A good analogy is the owner - architect - contractor relationship. The Legislative branch acts as the architect to draw up the plans and specifications according to the wishes of the people who elected them, (The owners) and exercises oversight to make sure the Executive Branch acts by its authority with its advice and consent. The Executive branch executes the instructions given it by the Legislature, but has no power to act on its own without instructions, because that would put it in the position of acting legislatively.
The Laws issued by the Legislature must be complied with exactly. It is the Presidents job to Preserve, protect and defend them while executing them faithfully and it's the Judiciary's job to act as competent administrators to see that all parties are in compliance with the Constitution.
The main function of the Executive Branch is to do what it is instructed to do by Legislation produced by the Legislative Branch: the Executive Branch collects taxes and customs duties as instructed by the Legislative Branch and uses the money appropriated by the Legislative Branch to pay the salaries of government employees and for other government expenditure. As instructed by the Legislative Branch, it assures the internal and external security of the state by maintaining a police force and armed forces when instructed to do so by the Legislative Branch according to its rules .
The Executive Branch acting by and with the advice and consent of the Legislative Branch is also responsible for executing the regulating legislation drafted by the Legislative Branch to guide the many sectors of the economy, notably
• the Military
• the labor force (e.g. by enforcing labor laws)
• agriculture
• transportation
• energy provision
• housing and construction (e.g. by issuing building permits)
• commerce in general (e.g. by enforcing minimum standards, and notably by issuing a currency)
The Executive Branch may provide health and education services: regulating these areas as instructed by the Legislative Branch and operate nationalized industries, and promote research and culture.
Foreign relations
Even by fairly large countries such as France, Germany or the United Kingdom. No country has diplomatic missions in every sovereign state, and small countries. An important symbolic role of the executive is to represent the country abroad. Under international law, this responsibility falls on the Head of State and the Head of Government, who usually delegates some of the day-to-day responsibilities to a foreign minister. Holders of these posts have automatic diplomatic immunity abroad while they are in office, that is to say that they can only be tried before the courts of their home country (or, exceptionally, before an international court).
In practice, this function of the executive is often delegated in part to the executive of another country, such as Andorra or San Marino have only one or two embassies. Despite their symbolic importance, foreign relations occupy only a small portion of the human and financial resources of the executive: the budget of the United States Department of State in 2004 was only 0.7% of the total budget of the United States federal government.
Relation to the legislature
While the legislature is responsible for approving the laws of a state, it does not usually, on its own, have the capacity to enforce them, notably in terms of employees and other infrastructure. The necessity to enforce a law if it is to be effective imposes a degree of cooperation between the legislature and the executive: the legislature may vote "free beer for all", but the executive would be in its role to ask "who pays the brewer?" In many countries the executive has the power to veto some or all types of legislation, or at least to delay their approval by insisting on a longer debate of the consequences .
Under the Westminster system, the Prime Minister and other ministers are members of the legislature, and in other parliamentary systems the executive is usually headed by the party or parties which control a majority in the legislature. This gives the executive some control over the legislation which is passed, but this control is rarely absolute in a democracy. In presidential systems, the executive and the legislature may be controlled by different political parties, a situation known as cohabitation: both sides must arrive at a compromise to allow the government to continue to function, although complete blockage is rare.
In general, the legislature has a supervisory role over the actions of the executive, and may replace the Head of Government and/or individual ministers by a vote of (no) confidence or a procedure of impeachment. On the other hand, a legislature which refuses to cooperate with the executive, for example by refusing to vote a budget or otherwise starving the executive of funds, may be dissolved by the Head of State, leading to new elections.
The legislature usually delegates some legislative power to the executive, notably to issue regulations or executive orders which complete a piece of legislation with technical details or points which might change frequently (e.g. fees for government services). The executive may also have powers to issue legislation during a state of emergency.
Relation to the judiciary
The Executive Branch acts by and with the advice and consent of the Legislation made by the Legislature and thus is subject to the Legislative Branch. (except in a dictatorship). The judiciary acts as a competent administrator to ensure compliance with the laws crafted by the Legislative Branch.
The laws which apply specifically to the executive are known as administrative law, although this should not be taken to imply that the executive is exempt from other laws such as human rights or the rules of war. The Executive Branch may be challenged in court for failure to comply with the decisions of the Legislative Branch. The idea of judicial review: is that the competent administrators in the judiciary have the responsibility to review compliance with Legislation wherever there is a party claiming injury. The Legislature Branch has the responsibility to supervise the execution of its laws and the compliance of the judiciary and the Executive branch with them.
The Legislature makes decisions and the Judiciary and the Executive Branch enforce its decisions with the help of the forces funded by the Legislature to enforce its laws (e.g. police force, prison service). The Legislative Branch is responsible for providing funding for courthouses, establishing and paying the salaries of judges: The Executive Branch is responsible for getting them built and staffed as instructed. The competent administration of the judicial system is the responsibility of the justice minister, also referred to as the attorney general.
The Legislative Branch makes laws and the Executive branch executes them as instructed. In the Department of Justice the Attorney General oversees the staff responsible for taking legal action in the public interest, for example enforcing Civil Rights, Public Safety, policing corporations, prosecuting them as any other criminal and protecting the interests of those who cannot defend themselves (e.g. children or the mentally handicapped). The authority to perform these functions is delegated by the legislature to be both the executive Branch and the judiciary as required. The executive is responsible for the day-to-day management after the Legislature decides to provid the necessary infrastructure and pay the necessary salaries.
Most countries have safeguards to protect the independence of the judiciary from the executive, such as the impossibility of the executive to dismiss a judge. Similar safeguards may apply to other categories of government employees, in order to allow them to conduct their functions without undue political pressure. In return, judges and government employees may be expected not to take part in active politics themselves. In the United States the Congress has all the power and the sole responsibility of removal by means of impeachment.
Local government
Individual states or provinces in a federal system have their own executives, legislatures and judiciaries in addition to the corresponding bodies at federal level. Even in non-federal systems, all but the smallest of countries have some form of local government, although legislative and (especially) judicial powers are often very limited. The distribution of executive powers between central and local government varies widely between different countries: for example, policing and education are local responsibilities in the United Kingdom but central responsibilities in France. An extreme example is Switzerland, where nationality, a central government responsibility in almost all other countries, is a matter for individual municipalities (albeit with federal minimum standards).
Local government may be funded through local taxes (often property taxes), through a grant from the central government or through a combination of the two. The head of the local executive of a municipality is usually known as the mayor; various terms exist for the head of the executive at other levels of local government. The local executive is usually supervised by an elected council, which is responsible for setting the rates of local taxes (where these exist, and often only to a limited extent) and for approving the budget of the local executive. The central government may also have a supervisory role, which may go as far as the power to dissolve the local government completely in exceptional cases .
As mentioned above, it is essential to consider the different roles of local (or State) government when comparing the roles of the executives in different countries: the provision of public education is an executive function whether it is provided by the central government (France), state governments (Germany), local education authorities (England and Wales) or school boards (United States).
Head of state
Head of state or Chief of state is the generic term for the individual or collective office that serves as the chief public representative of a monarchic or republican nation-state, federation, commonwealth or any other political state. His or her role generally includes personifying the continuity and legitimacy of the state and exercising the political powers, functions and duties granted the head of state in the country's constitution .
Constitutional models
Different countries have different executive systems but in essence four major, generalizing categories can be distinguished:
• the non-executive Head of State system in which the head of state does not hold any executive power and mainly plays a symbolic role on behalf of the state.
• the parliamentary system in which the head of state possesses theoretical executive power but the exercise of this power is delegated to a head of government.
• the presidential (or imperial) system in which the head of state is also the head of government and actively exercises executive power and,
• the semi-presidential system in which the head of state shares exercise of executive power with a head of government.
Non-executive heads of state
One form that the head of state role takes can be loosely called the non-executive head of state model. Its holders are excluded completely from the executive: they do not possess even theoretical executive powers or any role, even formal, within the government. Hence their states' governments are not referred to by the traditional parliamentary model head of state styles of His/Her Majesty's Government or His/Her Excellency's Government. Within this general category, variants in terms of powers and functions may exist. The king of Sweden, since the passage of the modern Swedish constitution (the Instrument of Government) in the mid 1970s, no longer has any of the parliamentary system head of state functions that had previously belonged to Swedish kings but still receives formal cabinet briefings monthly in the Royal Palace. In contrast, the only contact the Irish president has with the Irish government is through a formal briefing session given by the Taoiseach (prime minister) to the President. However, he or she has no access to documentation and all access to ministers goes through the Department of An Taoiseach (prime minister's office) .
Parliamentary system
In parliamentary systems the head of state may be merely the nominal chief executive officer of the state, possessing theoretical executive power (hence the description of the United Kingdom monarch's government as His/Her Majesty's Government, a term indicating that the government acts on H.M.'s behalf and not parliament's). In reality however, due to a process of constitutional evolution, powers are usually exercised by a cabinet, presided over by a prime minister or President of the Government who is answerable to the legislature (e.g. parliament). This answerability requires that someone be chosen from parliament who has parliament's support (or at least not parliament's opposition - a subtle but important difference). It also gives parliament the right to vote down the government, forcing it either to resign or seek a parliamentary dissolution. Governments are thus said to be responsible (or answerable) to parliament, with the government in turn accepting constitutional responsibility for offering constitutional Advice to the head of state.
In parliamentary monarchies considering themselves democratic, the legitimacy of the unelected head of state typically derives from the tacit approval of the people via the elected representatives. Accordingly, at the time of the Glorious Revolution, the English Parliament acted of its own authority to name a new King and Queen (joint monarchs Mary II and William III); likewise, Edward VIII's abdication required the passage of a law in the parliament of each of the Commonwealth Realms. In monarchies with a written constitution, the position of monarch is a creature of the Constitution and could quite properly be abolished through a democratic procedure of constitutional amendment, although there are often significant procedural hurdles imposed on such a procedure (as in the Constitution of Spain).
In reality, numerous variants exist to the position of a head of state within a parliamentary system. The older the constitution, the more constitutional leeway tends to exist for a head of state to exercise greater powers over government, as many older parliamentary system constitutions in fact give heads of state powers and functions akin to presidential or semi-presidential systems, in some cases without containing reference to modern democratic principles of accountability to parliament or even to modern governmental offices. For example, the 1848 constitution of the Kingdom of Italy was sufficiently ambiguous and outdated by the 1920s to give King Victor Emmanuel III leeway to appoint Benito Mussolini to power in controversial circumstances.
Some Commonwealth parliamentary systems combine a body of written constitutional law, unwritten constitutional precedent, Orders-in-Council, letters patent, etc. that may give a Head of State or their representative additional powers in unexpected circumstances (such as the dismissal of Australian prime minister Gough Whitlam by Governor-General Sir John Kerr.)
Other examples of heads of state in parliamentary systems using greater powers than usual, due either to ambiguous constitutions or unprecedented national emergencies, include the decision by King Léopold III of the Belgians to surrender on behalf of his state to the invading German army in 1940, against the will of his government. Judging that his responsibility to the nation by virtue of his coronation oath required him to act, he believed that his government's decision to fight rather than surrender was mistaken and would damage Belgium. (Leopold's decision proved highly controversial. After World War II, Belgium voted on whether to allow him back on the throne. It did so, but because of the ongoing controversy he ultimately abdicated.)
Presidential system
Some constitutions or fundamental laws provide for a head of state who is not just in theory but in practice chief executive, operating separately from, and independent from, the legislature. This system is sometimes known as a presidential system because the government is answerable solely and exclusively to a presiding, acting head of state, and is selected by and on occasion dismissed by the head of state without reference to the legislature. It is notable that some presidential systems, while not providing for collective executive answerability to the legislature, may require legislative approval for individuals prior to their assumption of cabinet office and empower the legislature to remove a president from office (for example, in the United States of America). In this case the debate centres on the suitability of the individual for office, not a judgement on them when appointed, and does not involve the power to reject or approve proposed cabinet members en bloc, so it is not answerability in the sense understood in a parliamentary system.
Some presidential systems may also include a prime minister but as with the other ministers they are responsible to the President, not the legislature. In many such instances the office is of minimal political importance, sometimes even held by some administrative technocrat rather than a politician. A prime minister in a presidential system lacks the constitutional and political dominance of a prime minister in a parliamentary system and is often seen as simply a politically junior figure who may run the mechanics of government while allowing the president to set the broad national agenda. One could say that, whereas in parliamentary systems a prime minister may be master of his or her party and the government, prime ministers in presidential systems are usually the servants, with the Head of State the master of the government who can employ or terminate anyone, including the prime minister, at will.
Presidential systems are a notable feature of constitutions in the Americas, including those of the United States, Brazil, and Mexico. Most presidents in such countries are selected by democratic means (popular direct or indirect election); however, like all other systems, the presidential model also encompasses people who become head of state by other means, notably through military dictatorship or coup d'état, as seen in South American, Middle Eastern, and other presidential regimes. Some of the characteristics of a presidential system (i.e., a strong dominant political figure with an executive answerable to them, not the legislature) can also be found among absolute monarchies, parliamentary monarchies, and Communist regimes, but in most cases of dictatorship apply their stated Constitutional models in name only and not in political theory or practise .
In the 1870s in the United States, in the aftermath of the impeachment of President Andrew Johnson and his near-removal from office it was speculated that the United States, too, would move from a presidential system to a semi-presidential or even parliamentary one, with the Speaker of the House of Representatives becoming the real center of government as a quasi-prime minister. This did not happen and the presidency, having been damaged by three late nineteenth century assassinations (Lincoln, Garfield, and McKinley) and one impeachment (Johnson), reasserted its political dominance by the early twentieth century through such figures as Theodore Roosevelt and Woodrow Wilson.
Semi-presidential systems
Semi-presidential systems combine features of presidential and parliamentary systems, notably a requirement that the government be answerable to both the President and the legislature . The constitution of the Fifth French Republic provides for a prime minister who is chosen by the president but who nevertheless must be able to gain support in the National Assembly. Should a president be of one side of the political spectrum and the opposition be in control of the legislature, the president is usually obliged to select someone from the opposition to become prime minister, a process known as Cohabitation. President François Mitterrand, a Socialist, for example was forced to cohabit with the neo-Gaullist (right wing) Jacques Chirac, who became his prime minister from 1986 -1988.
In the French system, in the event of cohabitation, the president is often allowed to set the policy agenda in foreign affairs and the prime minister runs the domestic agenda.
Other countries evolve into something akin to a semi-presidential system or indeed a full presidential system. Weimar Germany, for example, in its constitution provided for a popularly elected president with theoretically dominant executive powers that were intended to be exercised only in emergencies and a cabinet appointed by him from the Reichstag which was expected in normal circumstances to be answerable to the Reichstag. Initially, the President was merely a symbolic figure with the Reichstag dominant.
However, persistent political instability, in which governments often lasted only a few months, led to a change in the power structure of the Republic, with the president's emergency powers called increasingly into use to prop up governments challenged by critical or even hostile Reichstag votes. By 1932, power had shifted to such an extent that the German President, Paul von Hindenburg, was able to dismiss a chancellor and select his own person for the job even though the outgoing chancellor possessed the confidence of the Reichstag while the new chancellor did not. Subsequently President von Hindenburg used his power to appoint Adolf Hitler as Reich chancellor without consulting the Reichstag.
Single-party states
Since real political power belongs to the head of the sole legal party (often a communist party), in certain states under constitutions inspired by the former Soviet republics there was no formal office of head of state, but rather the head of the legislative 'soviet' branch of power was officially considered the head of state. In the Soviet Union this office had names Chairman of the Central Executive Committee of the USSR and Chairman of the Presidium of the Supreme Council as well as Chairman of the Central Executive Committee of the All-Russian Congress of Soviets in case of Soviet Russia (until 1922) .
This may even lead to an institutional variability, as in North Korea where after the presidency of party leader Kim Il Sung the office was vacant for years, the late president being granted the posthumous title (akin some ancient far eastern traditions to give posthumous names and titles to royalty) of president 'in eternity' (while all real power, as party leader, itself not formally for 4 years, was inherited by his son Kim Jong Il, initially without any formal office) until it was formally replaced on 5 September 1998 for ceremonial purposes by the office of the Chairman of the Presidium of the Supreme People's Assembly, while the party leader's post as Chairman of the National Defense Commission was simultaneously declared "the highest post of the state", not unlike Deng Xiaoping earlier in the People's Republic of China.
Complications with categorisation
While clear categories do exist, it is sometimes difficult to choose which category some individual heads of state belong to. Constitutional change in Liechtenstein in 2003 gave its head of state, the prince, unprecedented constitutional powers including a veto over legislation and power in theory to dismiss the cabinet. It could be argued that the strengthening of the prince's powers vis-a-vis the legislature has moved Liechtenstein into the semi-presidential category. Similarly the original powers given to the Greek president under the 1974 Hellenic Republic constitution moved Greece closer to the French semi-presidential model. And the theoretical power of the British monarch to dismiss his or her government at will would suggest that the United Kingdom should nominally belong to the semi-presidential category also. In reality, the category to which each head of state belongs is assessed not by theory but by practice. In practice no British monarch has forced a government from office since the early nineteenth century, while in reality the Greek Republic, even before the powers of the President of the Republic were curtailed in 1986, operated as a standard parliamentary system. Unless and until a Prince of Liechtenstein exercises the theoretical powers they now possess, the principality would still remain categorised as a parliamentary system.
Another complication exists with South Africa, in which the President is in fact elected by the legislature (like a Prime Minister) but also holds the title of President, serves for a fixed term, and is expected to be the nation's head of state. Nauru and Botswana are similar, both of which presidents, who are heads of state, are elected by the legislature.

Chapter Fourteen
Judicial Authority
In the law, the judiciary or judicial system is the system of courts which administer justice in the name of the sovereign or state, a mechanism for the resolution of disputes .
The term is also used to refer collectively to the judges, magistrates and other adjudicators who form the core of a judiciary, as well as the support personnel who keep the system running smoothly.
Under the doctrine of the separation of powers, the judiciary is the branch of government primarily responsible for interpreting the law.
• In common law jurisdictions, case law is created by the courts' interpretations as a result of the principle of stare decisis;
• In civil law jurisdictions, courts interpret the law, but are, at least in theory, prohibited from creating law, and thus, still in theory, do not issue rulings more general than the actual case to be judged; in practice, jurisprudence plays the same role as case law;
• In socialist law, the primary responsibility for interpreting the law belongs to the legislature.
This difference can be seen by comparing India, United States, France and the People's Republic of China:
• In Indian democracy, courts have the final say until the constitution itself is amended although a supreme court judgement in 1970's ruled that Parliament doesn't have the authority to change the basic structure of Indian constitution.
• in the United States government, the Supreme Court is the final authority on the interpretation of the federal Constitution and all statutes and regulations created pursuant to it;
• in France, the final authority on the interpretation of the law is the Conseil d'État for administrative cases, and the Court of Cassation for civil and criminal cases;
• Other countries such as Argentina have mixed systems that include lower courts, appeals courts, a cassation court (for criminal law) and a Supreme Court. In this system the Supreme Court is always the final authority but criminal cases have four stages, one more than civil law.
Differences between civil, socialist and common law
The idea found in civil and socialist law that the judiciary does not interpret the law in creative ways has its origins in Roman law. It is said that the famed Byzantine Emperor Justinian had the Corpus Juris Civilis compiled and all other decisions by jurists burned to create certainty in the law. Again in the 19th century, French legal scholars at the time of the development of the Code Napoleon advocated the same kind of approach — it was believed that since the law was being written down precisely, it should not need interpretation; and if it did need interpretation, it could be referred to those who wrote the code. Napoleon, who was an advocate of this approach felt that the task of interpreting the law should be left with the elected legislature, not with unelected judges. This contrasted with the pre-revolutionary situation in France, where unelected 'parlements' defending the interests of the high bourgeoisie would often slow the enforcement of royal decisions, including much needed reforms.
However, this idea was found difficult to implement in practice. In France, and other countries that Napoleon had conquered, or where there was a reception of the Civil Code approach, judges once again assumed an important role, like their English counterparts. In civil law jurisdictions at present, judges interpret the law to about the same extent as in common law jurisdictions – though it may be acknowledged in theory in a different manner than in the common law tradition which directly recognizes the limited power of judges to make law. For instance, in France, the jurisprudence constante of the Cour de cassation or the Conseil d'État is equivalent in practice with case law .
In theory, in the French civil law tradition , a judge does not make new law; he or she merely interprets the intents of "the Legislator." The role of interpretation is traditionally approached more conservatively in civil law jurisdictions than in common law jurisdictions. When the law fails to deal with a situation, doctrinal writers and not judges call for legislative reform, though these legal scholars sometimes influence judicial decisionmaking. Civil law judges also refer to the interpretation of codal provisions and they look for an underlying rationale not only in the particular text, but its relationship to the whole structure of the code as an organizing structure that reflects order in a civil society.
Socialist law adopted the status of civil law, but added to it a new line of thought derived from Communism - the interpretation of the law is ultimately political, and should serve the purposes of Communism, and hence should not be left to a non-political organ (even though in practice, the judiciary was never much of a neutral organ above politics).
Judges
A judge or justice is an official who presides over a court. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions.
Judges in the Legal System
There are significant differences between the role of a judge in the common law system descended from British practice, and civil law systems descendant from continental European judicial practice. The descriptions below are necessarily archetypical. Details vary from judicial system to judicial system. In many cases, the judicial systems have experienced convergent evolution, expressly or unconsciously adopting similar practices or operating in a manner that minimizes the impact of formal differences between the archetypical role of each system's judges .
Judges in common law legal systems
In common law countries, judges usually operate within the adversarial system of justice, and the trial level, usually preside over court proceedings as the sole judge present, with only narrow exceptions (e.g. in the United States, certain election law cases).
Professional Background
Common law judges are generally appointed or elected from among practicing attorneys after prior careers as practicing attorneys, although many receive brief educational programs specific to judging once taking the bench. Judges are frequently drawn from the ranks of barristers, as opposed to solicitors where a distinction is made between the two as separate legal professions.
Many U.S. states permit non-lawyers to serve as justices of the peace or as inferior jurisdiction judges in rural areas, but this practice is generally limited to less serious criminal offenses and small claims. Federal judges are not required by law to be attorneys, but the practice of appointing attorneys to the federal bench is almost universal .
Judges and Juries
In the common law system , when there is a jury trial in the trial courts, the jury generally decides questions of fact (guilty or not guilty, whether a party was negligent, etc.) while a single judge decides questions of law (under common-law systems, one of the judge's most important powers is to craft jury instructions).
In a trial before a judge, sometimes called a "bench trial", a single judge decides issues of both law and fact. Outside the United States, only a very narrow category of civil cases are tried before juries and usually criminal cases are tried before juries only in more serious cases. In the United States, cases where a jury is not available are the exception, rather than the norm, even in relatively minor civil and criminal matters. In United States practice, the right to a jury usually hinges on historical distinctions made between law and equity in Britain prior to the adoption of the United States Constitution.
Because both civil and criminal procedure in common law systems developed in the context of a system where the ultimate decisions were usually deferred to a jury (even though this is often not the case outside the United States in civil cases), common law judges are limited in their power to resolve matters prior to a full trial, even if they have all information that they feel they need to resolve a case involving disputed facts.
Historically, in Europe in the Middle Ages, juries often stated the law by consensus or majority and the judge applied it to the facts as he saw them. This practice no longer exists. The power of juries to determine the law in a manner contrary to that dictated by the trial judge, or even ignore the law (which is often called jury nullification), has been controversial in American jurisprudence from very early on in American history. Generally speaking, current practice in U.S. law is to formally deny that such a power exists. But, U.S. law also maintains procedural protections such as a prohibiting testimony regarding jury deliberations, and disallowing government appeals of acquittals by juries in criminal cases, that have the practical effect of making it possible for juries to make their own determinations of law.
U.S. legal practice also has an institution called a grand jury which is presided over on a day to day basis by a prosecutor, rather than a judge, although it is ultimately under the supervision of a judge. This institution investigates crimes via the subpoena power and screens serious criminal charges to determine if a prosecution is justified.
Appellate Judging
In common law practice, appeals are usually decided by a panel of judges, generally three appellate judges chosen at random in an intermediate appellate court and the entire composition of the court in the relevant highest appellate court in the jurisdiction, although decisions made by a subordinate or inferior jurisdiction judge are sometimes reviewed by a single judge.
Judges in civil law system

In the civil law system, serious matters are almost always decided at the trial level by at least three judges, and sometimes more, often in combination with lay persons in serious criminal manners, although one of those judges may take the lead in gathering evidence in a case. In civil law systems typically only the equivalent of U.S. small claims and misdemeanors are handled by a single trial judge .
In civil law practice, appeals are usually decided by a panel of multiple judges. State courts can be called district courts. The highest appellate court in a civil law jurisdiction, often translated "supreme court" in English, is typically organized more like an intermediate appellate court in common law practice, in that decisions are usually made by a panel of judges that does not include all judges who are a member of that court. Also unlike common law practice, judges are typically assigned to appeals in the highest appellate court based on specialties in a particular type of law, rather than at random. Typically the only appellate court in a civil law system in which all members of the court will typically decide a case that will operate in a civil law country is the constitutional court.
Non-judges with judicial power
Certain non-judges are vested with judicial power by virtue of their political or religious office, or their position as a responsible government employee.
In Japan, police officers can order punishments for minor offenses without approval from a judge. In U.S. military law, military officers can dispense justice for minor military law infractions without holding a court-martial, and also preside over courts-martial involving more serious offenses. A number of jurisdictions give mayors of municipalities judicial authority similar to a justice of the peace or magistrate. Many courts with probate jurisdiction give court clerks quasi-judicial authority as "registrars" of the court. Members of county commissions and city councils in the United States often have quasi-judicial authority in zoning matters. And, legislators sometimes sit in a judicial capacity, such as when they rule on impeachment charges of governmental officials, and in the United Kingdom, when law lords, who are officially members of the House of Lords, a primarily legislative body, hear appeals in legal cases.
Historically, in the United Kingdom, certain matters, such as annulments of marriages and division of personal property of deceased persons, were the responsibility of ecclesiastical courts, in which clergy presided. Many countries, such as and Pakistan and Iran, continue to have religious courts, particularly in matters of family law, that operate in addition to their ordinary courts with full authority to enter legally binding decisions. Other countries, such as Afghanistan under its newly adopted constitution, have a unitary court system in which some judges have primarily secular training, while others judges have primarily religious training.
Often parties in contractual relationships with each other enter into "arbitration agreements" which vests quasi-judicial authority to resolve disputed between the parties in a non-judge chosen by mutually agreed means. Sometimes these persons are legally trained, and sometimes they are not, but have some relevant subject matter expertise. Civil justice in the Roman Empire, which provided some of the foundational doctrines for Western systems often handled civil disputes through an arbitration-like mechanism. Courts can typically be called upon to enforce a final decision rendered by an arbitrator pursuant to an arbitration agreement if necessary.
Power of judges
In common law countries, such as the United States, and those with roots in the Commonwealth of Nations, judges have a number of powers which are not known to exist, or are not acknowledged to exist, in civil law legal systems, which collectively make the judiciary a more powerful political force than in civil law countries.
One of these powers is the "contempt of court" power. In a common law system, a judge typically has the power to summarily punish with a fine or imprisonment any misconduct which takes place in the courtroom, and to similarly punish violations of the court's orders, after a hearing, when they take place outside the courtroom. This power, in turn, may be used by common law judges to enforce orders for injunctive relief, which is a court order to take or refrain from taking some particular act, directed at the individual who must do so. This power is a vestige of authority that members of the nobility had when they personally presided over disputes between their subjects. It has the effect of giving common law country judges great power to fashion remedies, such as school desegregation orders and restraining orders directed at individuals. Civil law judges, in contrast, outside of specialized courts with narrowly delineated powers, generally lack contempt power or the power to impose injunctive relief.
Another power of every judge in the United States, generally right down to the level of the magistrate, is the power to declare a law unconstitutional and invalid, at least as applied in a particular case. In contrast, most civil law countries limit this power to a special constitutional court, and all other judges are required to follow the enacted laws, even if the judge personally believes those laws to be unconstitutional, in the absence of an order from the constitutional court. However, if a person believes that a law applied against them in court is unconstitutional, they can apply for consideration in the constitutional court and, if the law is indeed declared unconstitutional, file an appeal against the ruling based on the now-invalidated law.
Similarly, in the common law system, cases in which the government administration is at issue, known as public law cases, for example, suits claiming violations of civil rights by government officials, are often heard by the same judges who handle criminal cases and disputes between private individuals. In contrast, in civil law countries, only designated judges or quasi-judges (such as the Conseil d'État in France) can hear public law cases, and ordinary judges can hear only criminal cases and cases involving private parties.
Judges in a common law system are also empowered to make law guided by past precedent, or to choose to ignore past precedent as no longer applicable, based on a concept known as "stare decisis" ,"to stand by what has been decided", in cases where no statute or prior case clearly mandates a particular result, and in cases where past precedents, for some reason, no longer appear to provide firm guidance as to the current state of the law .
Civil law judges, likewise, have some powers not usually held by common law judges. Most importantly, a common law judge is usually required to base a decision almost exclusively on the evidence provided by the parties to a case during the course of a trial, or a hearing, or in documents filed with the court. In contrast, a civil law judge frequently has the authority to investigate the facts of a case independently of evidence provided by the parties to that case, in what is known as an "inquisitorial" role.
Oversight of judges
Federal judges in the United States (except those who have recess appointments) serve life terms for their period of "good behavior." Once appointed, state judges in the United States usually serve terms for a fixed period of years, after which they must be re-elected, face a retention election, or face reappointment by an appropriate authority. The law governing judicial elections in the United States is in flux with the general tendency being to discard historical limitations on the ability of a judge to campaign based upon judicial philosophy.
Most judicial systems in the United States have procedures for investigating breaches of judicial ethics and disability. Lapses of judicial ethics include matters such as taking bribes, open defiance of a binding court order, ruling upon a case in which the judge has a personal interest, failure to account for court funds, failure to conduct court proceedings with a suitably judicial demeanor, harassment of judicial employees or a judge's conviction of a serious offense unrelated to judicial service. Disability complaints often involve allegations that a judge is beginning to show symptoms of alcoholism, dementia or an inability to stay awake.
Complaints about a judge's judicial ethics or disability may ordinarily not contest the merits of the determination made by the judge, which can only be contested in the appellate process. Judges in the United States generally have absolute immunity for personal liability in the form of money damages for their discretionary judicial acts.
Almost every state and the federal government provides the legislature with the authority to remove a judge for cause in a quasi-judicial impeachment proceeding in which the legislative body hears evidence and renders a super-majority verdict limited to removal from office. Often the standard is "high crimes and misdemeanors" or failure to engage in "good behavior" while in office.
Many state judicial systems also have either a special commission or board charged with investigating alleged lapses of judicial ethics or disability, or vest that power in their highest court, usually a state supreme court. Such determinations may be appealed to the Supreme Court of the United States only to the extent that they involve the final decision of a state court system and pose a federal law question.
Some violations of judicial ethics, such as taking bribes or converting public funds, are also federal or state crimes investigated and prosecuted by the appropriate prosecutor.
In the federal system, there is no outside grievance body with the authority to discipline a U.S. Supreme Court justice. The U.S. Supreme Court has supervisory authority over the entire federal judiciary, in addition to its appellate responsibilities, and it has used this authority to establish certain procedures for investigating and addressing lapses of judicial ethics by federal judges .
In Canada, Justices (Justices of Peace) are appointed provincially to preside over minor cases, while Judges are appointed federally. Neither can be removed from office until they reached the retirement age of 65, 70 or 75 (depending on the type of appointment) unless they are found to have been in serious misconduct, in which case, the House of Commons and Senate (federally appointed) or the Judicial Council (provincially appointed) can pass a motion to remove a judge/justice from office.
Appeal
In law, an appeal is a process for making a formal challenge to an official decision. Depending on circumstances, appeals may be made to the same authority or to a higher judicial authority. In common law jurisdictions, most commonly, this means formally filing a notice of appeal with a lower court, indicating one's intention to take the matter to the next higher court with jurisdiction over the matter, and then actually filing the appeal with the appropriate appellate court .
An appellate court is a court that hears cases, in which a lower court - either a trial court or a lower-level appellate court - has already made a decision, but in which at least one party to the action wants to challenge this ruling based upon some legal grounds that are allowed to be appealed either by right or by leave of the appellate court. These grounds typically include errors of law, fact, or due process.
In different jurisdictions, appellate courts are also called appeals courts, courts of appeals, superior courts, or supreme courts.
Who can appeal
A party who files an appeal is called an appellant or petitioner, and a party on the other side is an appellee or respondent. Cross-appeals can also occur, when more than one party to a case is unhappy with the decision in some way, often when the winning party claims that more damages were deserved than were awarded.
The appellant is the party who, having lost part or all their claim in a lower court decision, is appealing to a higher court to have their case reconsidered. This is usually done on the basis that the lower court judge erred in the application of law, but it may also be possible to appeal on the basis of court misconduct, or that a finding of fact was entirely unreasonable to make on the evidence.
The appellant in the new case can be either the plaintiff (or claimant), defendant, or respondent (appellee) from the lower case, depending on who was the losing party. The winning party from the lower court, however, is now the respondent. In unusual cases the appellant can be the victor in the court below, but still appeal the claimant appealed (successfully) on the basis that, although he won in the court below, the lower court had applied the wrong measure of damages and he had not been fully recompensed.
An appellee is the party to an appeal in which the lower court judgment was in its favor. The appellee is required to respond to the petition, oral arguments, and legal briefs of the appellant. In general, the appellee takes the procedural posture that the lower court's decision should be affirmed.
Ability to appeal
An appeal as of right is one that is guaranteed by statute or some underlying constitutional or legal principle. The appellate court cannot refuse to listen to the appeal. An appeal by leave or permission requires the appellant to move for leave to appeal; in such a situation either or both of the lower court and the appellate court may have the discretion to grant or refuse the appellant's demand to appeal the lower court's decision.
In tort, equity, or other civil matters either party to a previous case may file an appeal. In criminal matters, however, the state or prosecution generally has no appeal as of right. And due to the double jeopardy principle, the state or prosecution may never appeal a jury or bench verdict. But in some jurisdictions, the state or prosecution may appeal as of right from a trial court's dismissal of an indictment in whole or in part or from a trial court's granting of a defendant's suppression motion .
By convention in some law reports, the appellant is named first. This can mean that where it is the defendant who appeals, the name of the case in the law reports reverses (in some cases twice) as the appeals work their way up the court hierarchy. This is not always true, however. In the United States federal courts, the parties names always stay in the same order as the lower court when an appeal is taken to the circuit courts of appeals, and are re-ordered only if the appeal reaches the United States Supreme Court.
Notice of appeal
A notice of appeal is a form or document that the appellant fills out to start the appeals process. More commonly, and with better possibility of a favorable outcome, the appellant's attorney, law firm, or their paralegal actually types it out, signs it, and files it with the appropriate court clerk's office. Some courts have samples of a notice of appeal on line.
Even if the document is not typed out, it is very important to sign the form, as most court systems will deny an appeal, or may even fine a person who files an unsigned.
In most court systems, the notice of appeal is the "document a person must file with the trial court in order to pursue an appeal." However, in some systems, the appellant must file it instead, or also, with the appellate court and all other parties, such as the appellee. The notice is then defined as "Formal notice served to an appellate court (and to parties involved in a case) by a litigant-party to inform them of its intention to request review of a lower-court's order." For this reason, it is also extremely important to contact the court clerk's offcie, or to read the decision, as to where, with whom, and how to file the notice.
The statute of limitations of actions to appeal is tradtionally very short - measured in days, not years. In the Federal Court system, it is ten days; in many state systems it is 20 to 30 days. When to file can be as important as where, to whom, and how to file the form.
The United States Supreme Court uses a discretionary (for the court, not the appellant) notice of appeal called the writ of certiorari.
How an appeal is processed
Generally speaking the appellate court examines the record of evidence presented in the trial court and the law that the lower court applied and decides whether that decision was legally sound or not. The appellate court will typically be deferential to the lower court's findings of fact (such as whether a defendant committed a particular act), unless clearly erroneous, and so will focus on the court's application of the law to those facts (such as whether the act found by the court to have occurred fits a legal definition at issue).
If the appellate court finds no defect, it "affirms" the judgment. If the appellate court does find a legal defect in the decision, it may "modify" the ruling to correct the defect, or it may nullify "reverse" or "vacate" the whole decision or any part of it. It may in addition send the case back "remand" or "remit" to the lower court for further proceedings to remedy the defect.
In some cases an appellate court may review a lower court decision de novo (or completely), challenging even the lower court's findings of fact. This might be the proper standard of review .
Another situation is where appeal is by way of re-hearing. Certain jurisdictions permit certain appeals to cause the trial to be heard afresh in the appellate court. An example would be an appeal from a Magistrates' court to the Crown Court in England and Wales.
Sometimes the appellate court finds a defect in the procedure the parties used in filing the appeal and dismisses the appeal without considering its merits, which has the same effect as affirming the judgment below. (This would happen, for example, if the appellant waited too long, under the appellate court's rules, to file the appeal.) In England and many other jurisdictions, however, the phrase appeal dismissed is equivalent to the U.S. term affirmed; and the phrase appeal allowed is equivalent to the U.S. term reversed.
Generally there is no trial in an appellate court, only consideration of the record of the evidence presented to the trial court and all the pre-trial and trial court proceedings are reviewed - unless the appeal is by way of re-hearing, new evidence will usually only be considered on appeal in very rare instances, for example if that material evidence was unavailable to a party for some very significant reason such as prosecutorial misconduct.
In some systems an appellate court will only consider the written decision of the lower court, together with any written evidence that was before that court and is relevant to the appeal. In other systems, the appellate court will normally consider the record of the lower court. In those cases the record will first be certified by the lower court .
The appellant has the opportunity to present arguments for the granting of the appeal and the appellee (or respondent) can present arguments against it. Arguments of the parties to the appeal are presented through their appellate lawyers, if represented, or pro se if the party has not engaged legal representation. Those arguments are presented in written briefs and sometimes in oral argument to the court at a hearing. At such hearings each party is allowed a brief presentation at which the appellate judges ask questions based on their review of the record below and the submitted briefs.
It is important to note that in an adversarial system appellate courts do not have the power to review lower court decisions unless a party appeals it. Therefore if a lower court has ruled in an improper manner or against legal precedent that judgment will stand even if it might have been overturned on appeal.