Legislative Authority

Chapter Twelve
Legislative Authority
Dr Khalil Hussein
Professor at Lebanese University
Director of studies at Lebanese Parliament

The main institutions of law in industrialized countries are independent courts, representative parliaments, an accountable executive.
The separation of powers[1] 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[2].
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)[3].
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[4].
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)[5].
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[6].
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.[7]
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[8]. 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[9].
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[10].
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.
[1] For more details about the separatio between powers see: Robert A. Goldwin, Art Kaufman, Separation of Powers- does it Still Work?, American Enterprise , 1986,p184.
[2] Francis Graham ,The Parliamentary System, University of Michigan, 2005,pp24-67.
[3]Wolfgang C. Muller , Thomas Saalfeld , Members of Parliament in Western Europe, Taylor & Francis Inc,1997,p47.
,

[4] For more details see Alpheus Todd, Parliamentary Government in England: Its Origin, Development, and Practical Operation, Adamant Media Corporationm 2001,ch1.
[5] For more details see J. H. Shennan , The Parlement of Paris, Sutton Publishing NY , 1998.
[6] From the first free elections in post-Soviet Russia in 1989 to the end of the Yeltsin period in 1999, Russia's parliament was the site of great political upheavals. Conflicts between communists and reformers generated constant turmoil, and twice parliamentary institutions broke down in violence. Thomas F Remington, Yale University Press, 2001,p4.
[7] See Thomas Curson Hansard, Great Britain Parliament, The Parliamen tary Debates.
.
[8]William Blackstone, George Sharswood, Laws of England, Harvard University,V2,1860.p12.
[9]Philip Rosenberg, House of Lords, HarperTorch ,2003,ch 2.
[10] See John Fraser Corkran, History of the National Constituent Assembly: From May 1848.especially ch 3.

Chapter Eleven

Chapter Eleven
Contracts
Dr Khalil Hussein
Professor at Lebanese University
Director of studies at Lebanese Parliament

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[1].
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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[2]. 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[3]. 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.[4] 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,[5] 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,[6] provided the document is contractual in nature.[7] 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[8].This includes such things as tickets issued at parking stations.[9]
Contractual terms
A contractual term is "any provision forming part of a contract"[10] 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[11]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[12].
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.[13]
· 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[14].



[1] Contract (Hardcover) , Greg Costikyan (Author), Tor Books; 1st ed edition ,2000.,p6.
[2] See Richard Stone ,The Modern Law of Contract, Routledge Cavendish, 2007,ch1.

[3] e.g. Lord Steyn, Contract Law: Fulfilling the Reasonable Expectations of Honest Men (1997) 113 p 433.
[4] Chappell & Co Ltd v Nestle Co Ltd ,1959, 2 All ER 701.
[5] Eastwood v. Kenyon (1840) 11 Ad&E 438.
[6] L'Estrange v. F Graucob Ltd ,1934, p 394
[7] Curtis v. Chemical Cleaning and Dyeing Co,1951 1 KB 805
[8] Hillas and Co. Ltd. v. Arcos Ltd. (1932) 147 LT 503
[9] Ewan McKendrick, Contract Law - Text, Cases and Materials (2005) Oxford University Press
[10] Martin, E [ed] & Law, J [ed], Oxford Dictionary of Law, ed6 (2006, London:OUP).
[11] Not to be confused with a product warranty, which is always referred to as a 'guarantee' in law.
[12] P.S. Atiyah, The Rise and Fall of Freedom of Contract (1979) Clarendon Press.
[13] Smith v. Hughes,p23-25..
[14] Beatson (1998)" Anson's Law of Contract", 27th ed. (Oxford: OUP), p.246

Classification of law

Chapter Ten
Classification of law

Dr Khalil Hussein
Professor at Lebanese University
Director of studies at Lebanese Parliament

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).[1] 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",[2] 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."[3]
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".[4]
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.[5]
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[6]. 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[7].
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[8].
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.[9]

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)[10]. 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[11].

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[12].

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."[13]

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[14].
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"[15]. 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[16] 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[17] 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[18] and criminal procedure[19] 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[20] involves which materials are admissible in courts for a case to be built.
- Immigration law[21] 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[22] refers to the rights people have to social insurance, such as jobseekers' allowances or housing benefits.
- Family law[23] 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[24] 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[25] 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[26] 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[27] deals with the recovery of someone else's gain, rather than compensation for one's own loss.
- Unjust enrichment[28] is law covering a right to retrieve property from someone that has profited unjustly at another's expense.

Law and regulation

- Tax law[29] involves regulations that concern value added tax, corporate tax, income tax.
- Banking law[30] 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[31] 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[32], 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[33] 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.


[1] Although some scholars argue that "the boundaries between public and private law are becoming blurres," and that this distinction has become mere "folklore" (Bergkamp, Liability and Environment, 1–2).
[2] e.g. in England these seven subjects, except with EU law instead of international law, are required knowledge for legal practice. Outside the EU, students may focus on other regional organisations, such as NAFTA, SAFTA, CSN, ASEAN or the African Union.
[3] For more details about the subjects of international public law,Khalil hussein,International & Regional organizations,Dar lmanhal aloubnanee,2006,ch 1.
[4] Greig, D, International Law, 2nd ed (Butterworths: London, 1976),p 27..
[5] Khalil Hussein, International & Regional Organizations ,Dar Al Manhal Al loubnanee,Beirut,2006.ch 21.
[6] cf. Art. 38 of the Statute of the International Court of Justice.And see by Malcolm D. Evans, International Law.
[7] Erwin Chemerinsky, Constitutional Law, Aspen Publishers,2006.
[8] See Henc Van Maarseveen, Ger “van der” Tang, Written Constitutions: A Computerized Comparative Study, BRILL,2002,p272.
[9] Michael Head, Administrative Law, The Federation Press, 2005,p35
[10] See David C. Brody, James R. Acker, Wayne A. Logan, Criminal Law, Jones & Bartlett Publishers,ch 2 & 3.

[11] James Fitzjames Stephen, A History of the Criminal Law of England, Routledge – 1996,p69.
[12] Joel Samaha, Criminal Law, Wadsworth , 2004,p65.
[13] Campbell McLachlan, Peter Edward Nygh, Transnational Tort Litigation: Jurisdictional Principles, Routledge,2001,p267.

[14] See P Sarcevic, Private International Law, Sellier. European Law , 2004,p21.

[15] For more details see eoffrey Gilbert, Cases in Law and Equity: Argued, Debated and Adjudged in the King's Bench, British Library.

[16]SEE Hugh Collins, K. D. Ewing, Aileen McColgan, Labour Law: Text and Materials, Hart Publishing – 2005.
[17] Nihal Jayawickrama, The Judicial Application of Human Rights Law, Cambridge University Press,2004.
[18] Joseph W. Glannon, Civil Procedure: Examples & Explanations ,5th edition 2006.
[19]Lester B. Orfield, Criminal Procedure From Arrest To Appeal, Imprint unknown – 1972.
[20] Sir Geoffrey] [Gilbert, The Law of Evidence, Imprint unknown – 1979.
[21]Austin T. Fragomen, Steven C. Bell, Immigration Fundamentals: A Guide to Law and Practice, Practising Law Institute – 1996.

[22]Frans Pennings و Introduction to European Social Security Law, Intersentia Publishers; 4Rev Ed edition 2003.
[23] Frances Burton, Family Law, Blackstone Press – 1998.
[24] Robert Bradgate Commercial Law, LexisNexis UK; 3Rev Ed edition ,2000.
[25] Stephen Griffin ,Company Law:Fundamental Principles, Pearson Education Company ,4th Edition,2005.
[26] Gordon V. Smith, Russell L. Parr, Intellectual Property: Valuation, Exploitation, and Infringement Damages, John Wiley & Sons Inc – 2006.
[27] Charles F. Abel, Frank H. Marsh, Punishment and Restitution: A Restitutionary Approach to Crime and the Criminal, Greenwood Press,2004.
[28]Jason W. Neyers, Stephen G. A. Pitel, Mitchell McInnes, Understanding Unjust Enrichment, Hart Publishing,2003.
[29] Practising Law Institute, Louis S. Freeman ,Tax Strategies for Corporate Acquisitions, Dispositions, Practising Law Institute – 2004.
[30] Ross Cranston,Principles of Banking Law, Oxford University Press; Ed edition, 2002.
[31] Carl H. Fulda,Competition in the Regulated Industries, Transportation: Transportation, University of Michigan,2001,
[32] Anselm Kamperman Sanders, Unfair Competition Law: The Protection of Intellectual and Industrial Creativity, Oxford University Press.
[33] Michael G. Faure, Nicole Niessen ,Environmental Law in Development, Edward Elgar Publishing,2005.