Law means the
principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation
or of custom and
policies recognized and enforced by judicial decision.1 This law is
sometimes considered that law is a matter for the law students, legal
practitioners and the judges. But this is not a correct notion. There is
nothing in the Universe which is beyond law and hence law should be for all and
all should be aware of knowing the law.
Law is a
system of rules and
guidelines which are enforced through social institutions to govern behavior.
[3]
Laws are made by
governments, specifically by their
legislatures.
The formation of laws themselves may be influenced by a
constitution
(written or unwritten) and the
rights encoded therein. The
law shapes
politics,
economics
and
society in
countless ways and serves as a social mediator of relations between
people.
The adjudication
of the law is generally divided into two main areas.
Criminal law
deals with conduct that is considered harmful to
social order
and in which the
guilty party may be imprisoned or fined.
Civil law (not to be confused with civil law jurisdictions
above) deals with the resolution of
lawsuits
(disputes) between individuals or organizations. These resolutions seek to
provide a
legal remedy (often monetary
damages) to
the winning
litigant.
To implement and
enforce the law and provide services to the public, a government's bureaucracy,
the military and police are vital. While all these organs of the state are
creatures created and bound by law, an independent
legal profession and a vibrant
civil society
inform and support their progress
[citation
needed].
In a
presidential
democracy, the
constitution
is
sovereign
and the central institutions for interpreting and creating law are the three
main branches of government, namely an impartial
judiciary, a
democratic legislature, and an accountable executive. In
parliamentary
systems, the legislature is sovereign
and appoints one of its members as the executive (often called the
prime minister).
The judicial branch is under the parliament.
The Philosophy of Law:
The
philosophy of law is commonly known as jurisprudence. Normative jurisprudence
is essentially political philosophy, and asks "what should law be?", while analytic
jurisprudence asks "what is law?". John
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".[100]
Natural lawyers
on the other side, such as Jean-Jacques Rousseau, argue that law reflects essentially moral and unchangeable
laws of nature. The concept of "natural law" emerged in ancient Greek philosophy
concurrently and in entanglement with the notion of justice, and re-entered the
mainstream of Western culture through the writings of Thomas Aquinas.
Hugo Grotius,
the founder of a purely rationalistic system of natural law, argued that law
arises from both a social impulse—as Aristotle had indicated—and reason.[101]
Immanuel Kant believed a moral imperative requires laws "be chosen
as though they should hold as universal laws of nature".[102]
Jeremy Bentham and his student Austin, following David Hume,
believed that this conflated the "is" and what "ought to be" problem. Bentham and Austin argued for law's positivism;
that real law is entirely separate from "morality".[103]
Kant was also criticised by Friedrich Nietzsche, who rejected the principle of equality, and believed that
law emanates from the will to power,
and cannot be labelled as "moral" or "immoral".[104][105][106]
In
1934, the Austrian philosopher Hans Kelsen
continued the positivist tradition in his book the Pure Theory of Law.[107]
Kelsen believed that although law is separate from morality, it is endowed with
"normativity"; meaning we ought to obey it. While laws are positive
"is" statements (e.g. the fine for reversing on a highway is
€500); law tells us what we "should" do. Thus, each legal system can
be hypothesised to have a basic norm (Grundnorm)
instructing us to obey. Kelsen's major opponent, Carl Schmitt,
rejected both 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.[108]
Therefore, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could encompass of all
political experience.[109]
Bentham's utilitarian theories
remained dominant in law until the 20th century
Later in the 20th century, H. L. A. Hart
attacked Austin for his simplifications and Kelsen for his fictions in The Concept of Law.[110]
Hart argued law is a system of rules, divided into primary (rules of conduct)
and secondary ones (rules addressed to officials to administer primary rules).
Secondary rules are further 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
continued the debate: In his book Law's Empire, Ronald Dworkin
attacked Hart and the positivists for their refusal to treat law as a moral
issue. Dworkin argues that law is an "interpretive concept",[111] 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, defended the positivist outlook and criticised Hart's
"soft social thesis" approach in The Authority of Law.[112]
Raz argues that law is authority, identifiable purely through social sources
and without reference to moral reasoning. In his view, any categorisation of
rules beyond their role as authoritative instruments in mediation are best left
to sociology,
rather than jurisprudence.[113]
The history of law:
The
history of law is closely connected to the development of civilization.
Ancient Egyptian law, dating as far back as 3000 BC, contained a civil
code that was probably broken into twelve books. It was based on the concept of
Ma'at,
characterised by tradition, rhetorical
speech, social equality and impartiality.[79][80]
By the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code, which
consisted of casuistic statements ("if ... then ..."). Around
1760 BC, King Hammurabi further developed Babylonian law,
by codifying and inscribing it in stone. Hammurabi placed several copies of his
law code throughout the kingdom of Babylon as stelae, for the entire public to see; this became known as the Codex Hammurabi.
The most intact copy of these stelae was discovered in the 19th century by
British Assyriologists, and has since been fully transliterated
and translated into various languages, including English, German, and French.[81]
The
Old Testament dates back to 1280 BC and takes the form of moral
imperatives as recommendations for a good society. The small Greek
city-state, ancient Athens, from
about the 8th century BC was the first society to be based on broad inclusion
of its citizenry, excluding women and the slave class.
However, Athens had no legal science or single word for "law",[82]
relying instead on the three-way distinction between divine law (thémis),
human decree (nomos) and custom (díkē).[83]
Yet Ancient Greek law contained major constitutional innovations in the development of democracy.[84]
Roman law
was heavily influenced by Greek philosophy, but its detailed rules were
developed by professional jurists and were highly sophisticated.[85][86]
Over the centuries between the rise and decline of the Roman Empire,
law was adapted to cope with the changing social situations and underwent major
codification under Theodosius II and Justinian I.[87]
Although codes were replaced by custom and case law during
the Dark Ages, Roman law was rediscovered around the 11th century when
mediæval legal scholars began to research Roman codes and adapt their concepts.
In mediæval England, royal courts developed a body of precedent
which later became the common law. A Europe-wide Law Merchant
was formed so that merchants could trade with common standards of practice
rather than with the many splintered facets of local laws. The Law Merchant, a
precursor to modern commercial law, emphasised the freedom to contract and
alienability of property.[88]
As nationalism grew in the 18th and 19th centuries, the Law Merchant was
incorporated into countries' local law under new civil codes. The Napoleonic
and German Codes became the most influential. In contrast to English
common law, which consists of enormous tomes of case law, codes in small books
are easy to export and easy for judges to apply. However, today there are signs
that civil and common law are converging.[89]
EU 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 have historically had independent schools of
legal theory and practice. The Arthashastra,
probably compiled around 100 AD (although it contains older material), and
the Manusmriti
(c. 100–300 AD) were foundational treatises in India, and comprise
texts considered authoritative legal guidance.[90]
Manu's central philosophy was tolerance and Pluralism, and was cited across Southeast Asia.[91]
This Hindu
tradition, along with Islamic law, was supplanted by the common law when India
became part of the British Empire.[92]
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.[93]
Japan was the first country to begin modernising its legal system along western
lines, by importing bits of the French, but
mostly the German Civil Code.[94]
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.[95]
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.[96]
Due to rapid industrialisation, today China is undergoing a process of reform,
at least in terms of economic, if not social and political, rights. A new
contract code in 1999 represented a move away from administrative domination.[97]
Furthermore, after negotiations lasting fifteen years, in 2001 China joined the
World
Trade Organisation
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