LEGAL LAW

LAW

Law is a system of rules usually enforced through a set of institutions.Law
affects everyday life and society in a variety of ways. Contract law regulates
everything from buying a bus ticket to trading swaptions on a derivatives
market. Property law defines rights and obligations related to buying, selling,
or renting real property such as homes and buildings. Trust law applies to
assets held for investment, such as pension funds. Tort law allows claims for
compensation when someone or their property is harmed. But if the harm is
criminalised in a penal code, criminal law offers means to prosecute and punish
the perpetrator. Constitutional law provides a framework for creating laws,
protecting people's human rights, and electing political representatives, while
administrative law allows ordinary citizens to challenge the way governments
exercise power. International law regulates affairs between sovereign
nation-states in everything from trade to the environment to military action.
"The rule of law", wrote the ancient Greek philosopher Aristotle in 350 BCE, "is
better than the rule of any individual."



Legal systems around the world elaborate legal rights and responsibilities in
different ways. A basic distinction is made between civil law jurisdictions and
systems using common law. Some countries base their law on religious scripts.
Scholars investigate the nature of law through many perspectives, including
legal history and philosophy, or social sciences such as economics and
sociology. The study of law raises important questions about equality, fairness
and justice, which are not always simple. "In its majestic equality", said the
author Anatole France in 1894, "the law forbids rich and poor alike to sleep
under bridges, beg in the streets and steal loaves of bread."The most important
institutions for law are the judiciary, the legislature, the executive, its
bureaucracy, the military and police, the legal profession and civil society.

Legal subjects

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.





International law

Main articles: Public international law, Conflict of laws, and European Union
law



Providing a constitution for public international law, the United Nations was
conceived during World War II.In a global economy, law is globalising too.
International law can refer to three things: public international law, private
international law or conflict of laws and the law of supranational organisations.



Public international law concerns relationships between sovereign nations. It
has a special status as law because there is no international police force, and
courts lack the capacity to penalise disobedience.The sources for public
international law to develop are custom, practice and treaties between sovereign
nations. The United Nations, founded under the UN Charter, is the most important
international organisation, established after the Treaty of Versailles's failure
and World War II. Other international agreements, like the Geneva Conventions on
the conduct of war, and international bodies such as the International Court of
Justice, International Labour Organisation, the World Trade Organisation, or the
International Monetary Fund, also form a growing part of public international
law.

Conflict of laws (or "private international law" in civil law countries)
concerns which jurisdiction a legal dispute between private parties should be
heard in and which jurisdiction's law should be applied. Today, businesses are
increasingly capable of shifting capital and labour supply chains across
borders, as well as trading with overseas businesses. This increases the number
of disputes outside a unified legal framework and the enforceability of standard
practices. Increasing numbers of businesses opt for commercial arbitration under
the New York Convention 1958.

European Union law is the first and only example of a supranational legal
framework. However, given increasing global economic integration, many regional
agreements—especially the Union of South American Nations—are on track to follow
the same model. In the EU, sovereign nations have pooled their authority through
a system of courts and political institutions. They have the ability to enforce
legal norms against and for member states and citizens, in a way that public
international law does not. As the European Court of Justice said in 1962,
European Union law constitutes "a new legal order of international law" for the
mutual social and economic benefit of the member states.

Constitutional and administrative law

Main articles: Constitutional law and Administrative law



The French Declaration of the Rights of Man and of the Citizen, whose principles
still have constitutional valueConstitutional and administrative law govern the
affairs of the state. Constitutional law concerns both the relationships between
the executive, legislature and judiciary and the human rights or civil liberties
of individuals against the state. Most jurisdictions, like the United States and
France, have a single codified constitution, with a Bill of Rights. A few, like
the United Kingdom, have no such document; in those jurisdictions the
constitution is composed of statute, case law and convention. A case named
Entick v. Carrington[10] illustrates a constitutional principle deriving from
the common law. Mr Entick's house was searched and ransacked by Sheriff
Carrington. When Mr Entick complained in court, Sheriff Carrington argued that a
warrant from a Government minister, the Earl of Halifax, was valid authority.
However, there was no written statutory provision or court authority. The
leading judge, 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… 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."



The fundamental constitutional principle, inspired by John Locke,[11] is that
the individual can do anything but that which is forbidden by law, and the state
may do nothing but that which is authorised by law. Administrative law is the
chief method for people to hold state bodies to account. People can apply for
judicial review of actions or decisions by local councils, public services or
government ministries, to ensure that they comply with the law. The first
specialist administrative court was the Conseil d'État set up in 1799, as
Napoleon assumed power in France.

Criminal law

Main article: Criminal law



A depiction of a 1600s criminal trial, for witchcraft in SalemCriminal law is
the body of law that defines criminal offences and the penalties for convicted
offenders.[13] Apprehending, charging, and trying suspected offenders is
regulated by the law of criminal procedure. In every jurisdiction, a crime is
committed where three elements are fulfilled. First, the accused must commit the
criminal act, or actus reus (guilty act). Second, there must exist a victim, who
suffered a legally recongnised harm. In the case of victimless crimes, the legal
system regards the accused, or society at large, as the victim of the criminal
act. Third, there must exist causation, which is a logical connection, supported
by evidence, that establishes the link between the criminal act and the harm
suffered. If it cannot be proven that the act caused the harm, a conviction
cannot be sustained. For most, but not all crimes, the criminal must also have
the requisite malicious intent to do a criminal act, or mens rea (guilty mind).
A mens rea, however, is not a required element for strict liability crimes, such
as statutory rape, which require only that the accused engaged in a criminal
act; the legal system does not take into account the mental state of the accused
when determining culpability for the offense.



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.[13] 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.[13] 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.



Contracts

Main article: Contract



The Carbolic Smoke Ball offer, which bankrupted the Co. because it could not
fulfill the terms it advertisedThe concept of a "contract" is based on the Latin
phrase pacta sunt servanda (agreements must be kept). Contracts can be simple
everyday buying and selling or complex multi-party agreements. They can be made
orally (e.g. buying a newspaper) or in writing (e.g. signing a contract of
employment). Sometimes formalities, such as writing the contract down or having
it witnessed, are required for the contract to take effect (e.g. when buying a
house).



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. For example, in Carlill v. Carbolic Smoke Ball
Company[21] a medical firm advertised that its new wonder drug, the smokeball,
would cure people's flu, and if it did not, buyers would get £100.[22] Many
people sued for their £100 when the drug did not work. Fearing bankruptcy,
Carbolic argued the advert was not to be taken as a serious, legally binding
offer. It was an invitation to treat, mere puff, a gimmick. But the court of
appeal held that to a reasonable man Carbolic had made a serious offer. People
had given good consideration for it by going to the "distinct inconvenience" of
using a faulty product. "Read the advertisement how you will, and twist it about
as you will", said Lord Justice Lindley, "here is a distinct promise expressed
in language which is perfectly unmistakable".



"Consideration" means all parties to a contract must exchange something of value
to be able to enforce it. Some common law systems, like Australia, are moving
away from consideration as a requirement for a contract. The concept of estoppel
or culpa in contrahendo can be used to create obligations during pre-contractual
negotiations. In civil law jurisdictions, consideration is not a requirement for
a contract at all.[24] In France, an ordinary contract is said to form simply on
the basis of a "meeting of the minds" or a "concurrence of wills". Germany has a
special approach to contracts, which ties into property law. Their 'abstraction
principle' (Abstraktionsprinzip) means that the personal obligation of contract
forms separately from the title of property being conferred. When contracts are
invalidated for some reason (e.g. a car buyer is so drunk that he lacks legal
capacity to contract) the contractual obligation to pay can be invalidated
separately from the proprietary title of the car. Unjust enrichment law, rather
than contract law, is then used to restore title to the rightful owner.

Tort law

Main article: Tort



The "McLibel" two were involved in the longest running case in UK history for
publishing a pamphlet criticising McDonald's restaurantsTorts, 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; Mr Stevenson
owed Mrs Donoghue a duty of care to provide safe drinks he breached his
duty of care the harm would not have occurred but for his breach and
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. 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,when statute does
not provide immunity.