General idea of law

General Idea

Law, in politics and jurisprudence, is a set of rules of conduct which mandate or proscribe (or both) specified relationships among people and organizations; as well as punishments for those who do not follow the established rules of conduct.

In ethics and moral philosophy this type of law is often called a “human legal code” to distinguish it from more fundamental laws applicable to all beings (metaphysics, ontology). Such a body of laws can be seen as a legally-enforced ethical code or as a “secular moral code” (to the degree that political leaders replace religious leaders as moral examples). Because lawyers and jurists more than other professions are self-regulating, almost by definition, they are often held to higher standards of behaviour or at least a stricter etiquette. These concerns are not part of this article, because those expectations and disciplines are specific to each legal code. This article takes an English-speaking point of view and deals with other legal traditions and codes by way of comparison only.

Codification of law

Law is the formal codification of customs which have achieved such acceptance as become the enforced norm. The process of acceptance is accelerated by the existence of legislative bodies which seek to impose laws.

Law codification involves the legislation and regulation of statutes; as well as the resolution of disputes. In the civil law system codification is also an attempt to structure the law according to fundamental ethical principles to create a sense of order and simplicity that all members of society can comprehend, not merely university trained jurists. Stating the law in simple, precise terms, understandable to the lay person without a specialized legal education, is the only way they can reasonably obey it or be fairly sanctioned for not obeying it.

This overlaps with the idea of a formal social legal code as understood in ethics. This may be understandable to the educated lay person but perhaps not to the ordinary lay person. For example, one can explain the idea of precedent more easily than that of the reasonable man, but it may be much harder to explain why precedent is “fair” to one without “higher education”. The following are examples of such lay explanations of different branches of law, and theories of law.

Law as academic discipline and profession

In addition to being part of the societal framework law is also an academic discipline and a profession. Lawyers are sometimes called by other names, as in England where the profession is divided between solicitors and barristers or solicitor and advocate in Scotland. Sometimes they are also called notaries (not to be confused with notary public which is an individual who is licensed to act as a witness to certain transactions, take oaths and authenticate signatures). They are professionally trained in the United States at graduate schools of law leading to the J.D degree (Juris Doctor). In other countries legal education is considered to start at the undergraduate stage taught in faculty of law leading to the LL.B or B.C.L degrees. Note that in Canada at least, the LL.B. requires a previous undergraduate degree to study. Law is an undergraduate degree mainly in civil law countries. Most of these schools also have advanced legal degrees such as the LL.M and the J.S.D degrees. Many persons who attend law school never practice law but use their knowledge of law in another profession. See Law (academic) and jurisprudence

Legal System

Most laws and legal systems—at least in the Western world—are quite similar in their essential themes, arising from similar values and similar social, economic, and political conditions, and they typically differ less in their substantive content than in their jargon and procedures. Communication between legal systems is the focus of legal translation and legal lexicography, which deals with the principles of producing a law dictionary.

One of the fundamental similarities across different legal systems is that, to be of general approval and observation, a law has to appear to be public, effective, and legitimate, in the sense that it has to be available to the knowledge of the citizen in common places or means, it needs to contain instruments to grant its application, and it has to be issued under given formal procedures from a recognized authority.

In the context of most legal systems, laws are enacted through the processes of constitutional charter, constitutional amendment, legislation, executive order, rulemaking, and adjudication; within Common law jurisdictions, rulings by judges are an important additional source of legal rules.

However, de facto laws also come into existence through custom and tradition. (See generally Consuetudinary law; Anarchist law.)

Law has an anthropological dimension. In order to have a culture of law, people must dwell in a society where a government exists whose authority is hard to evade and generally recognised as legitimate. People forego personal revenge or self-help and choose instead to take their grievances before the government and its agents, who arbitrate disputes and enforce penalties.

This behaviour is contrasted with the culture of honor, where respect for persons and groups stems from fear of the disproportionate revenge they may exact if their person, property, or prerogatives are not respected. Cultures of law must be maintained. They can be eroded by declining respect for the law, achieved either by weak government unable to wield its authority, or by burdensome restrictions that attempt to forbid behaviour prevalent in the culture or in some subculture of the society. When a culture of law declines, there is a possibility that an undesirable culture of honor will arise in its place.

A particular society or community adopts a specific set of laws to regulate the behavior of its own members, to order life in its political territory, to grant or acknowledge the rights and privileges of its citizens and other people who may come under the jurisdiction of its courts, and to resolve disputes.

There are several distinct laws and legal traditions, and each jurisdiction has its own set of laws and its own legal system. Individually codified laws are known as statutes, and the collective body of laws relating to one subject or emanating from one source are usually identified by specific reference. (E.g., Roman law, Common law, and Criminal law.)

Moreover, the several different levels of government each produce their own laws, though the extent to which law is centralized varies. Thus, at any one place there can be conflicting laws in force at the local, regional, state, national, or international levels. (See conflict of laws, Preemption of State and Local Laws.)

Bodies of law, a sampling

This list is not comprehensive.

Administrative law refers to the body of law which regulates bureaucratic managerial procedures and is administered by the executive branch of a government; rather than the judicial or legislative branches (if they are different in that particular jurisdiction). This body of law regulates international trade, manufacturing, pollution, taxation, and the like. This is sometimes seen as a subcategory of civil law and sometimes called public law as it deals with regulation and public institutions.
Canon law comprises the laws of the Anglican, Eastern Orthodox, Roman Catholic churches.
Case law (precedental law) regulates, via precedents, how laws are to be understood. Case law, also called common law or judge-made law, is derived from the body of rulings made by a country’s courts. In the United States, the primary source of case law relating to federal and constitutional questions is the Supreme Court of the United States. The states, each with its own final court of appeals, generate case law that is only binding precedent in that state. In countries that were once part of the British Empire the Judicial Committee of the Privy Council and the House of Lords are primary sources of case law, though not necessarily binding precedent, as each country has its own court of last resort.
Civil law, not to be confused with the civil legal system, has several meanings:
- Secular law is the legal system of a non-theocratic government, such as that which developed in England, especially during the reign of Henry II
- Private law regulates relationships between persons and organizations including contracts and responsible behaviour such as through liability through negligence. This body of law enforces statutes or the common law by allowing a party, whose rights have been violated, to collect damages from a defendant. Where monetary damages are deemed insufficient, civil court may offer other remedies in equity; such as forbidding someone to do an act (eg; an injunction) or formally changing someone’s legal status (eg; divorce). This body of law includes the law of torts in common law systems, or in civilian systems, the Law of Obligations.
Commercial law, often considered to be part of civil law, covers business and commerce relations including sales and business entities.
Common law is derived from Anglo-Saxon customary law, also referred to as judge-made law, as it developed over the course of many centuries in the English courts.
Criminal law (penal law) is the body of laws which regulate governmental sanctions (such as imprisonment and/or fines) as retaliation for crimes against the social order.
International law governs the relations between states, or between citizens of different states, or international organizations. Its two primary sources are customary law and treaties.
Procedural law are rules and regulations found in an legal system that regulate access to legal institutions such as the courts, including the filing of private lawsuits and regulating the treatment of defendants and convicts by the public criminal justice system. Within this field are laws regulating arrests and evidence, injunctions and pleadings. Procedural law defines the procedure by which law is to be enforced. See criminal procedure and civil procedure.
Space law regulates events occurring outside Earth’s atmosphere. At present this is limited to several treaties against atomic testing in space.