The word law has many

38

UNIT 1. WHAT IS LAW?

Lead-in

1. The word “law” has many meanings, and this
word is used variously in different fields. For example, physical
science has its law of gravity, and economics has the law of supply
and demand. Do these laws have precise definitions? Is the same
precision possible in jurisprudence —
the scientific study of law?

2. Over the years, legal scholars have offered
dozens of definitions of law, but none of them is universally
accepted as absolutely definitive. How can this difficulty in
defining law be explained?

Part I. Introduction to Law

Read the text and tick the issues it
addresses:

1. the separation of powers 5. the concept of justice

2. social morality, rules and laws 6. descriptive and prescriptive
laws

3. common sense and law 7. system of courts and police

1. public
   and civil laws

The English word “law” refers to limits upon
various forms of behaviour. Some laws are descriptive: they simply
describe how people, or even natural
phenomena, usually behave. An example
is rather consistent
law of gravity; another is the less consistent law of economics.
Other laws are prescriptive – they prescribe how people ought to
behave. For example, the speed limits imposed
upon drivers are laws that prescribe
how fast we should drive. They rarely describe how fast we actually
do drive, of course.

In all societies, relations between people are
regulated by prescriptive laws. Some of them are customs – that is,
informal rules of social and moral behaviour. Some are rules we
accept if we belong to particular social institutions, such as
religious, educational and cultural groups. And some are precise laws
made by nations and enforced against all
citizens within their power.

What motives do governments have in making and
enforcing laws? Social control is undoubtedly one purpose. Public
laws establish the authority of the
government itself, and civil laws
provide a framework
for interaction among citizens. Without laws, it is argued, there
would be anarchy in society (although anarchists themselves argue
that human beings would be able to interact peacefully without laws
if there were no governments to interfere in our lives).

Another purpose is the implementation
of justice. Justice is a concept that
most people feel is very important but few are able to define.
Sometimes a just decision is simply a decision that most people feel
is fair. But can we create a just society by simply observing public
opinion? If we are always fair to
majorities, we will often be unfair to minorities. If we do what
seems to be fair at the moment, we may create unfairness in the
future. Many philosophers have proposed concepts of justice that are
much more theoretical than everyday notions of fairness, and
sometimes governments are influenced by philisophers. But in general,
governments are guided by more practical
considerations such as rising crime
rates or the lobbing of pressure
groups.

Sometimes laws are simply an attempt to implement
common sense.
It is obvious to most people that dangerous driving should be
punished; that fathers should provide financial support for their
children if they desert their families; that a person should be
compensated for losses when someone else breaks
an agreement with him or her. But in
order to be enforced, common sense needs to be defined in law, and
when definitions are being written, it becomes clear that common
sense is not such a simple matter. Instead, it is a complex skill
based upon long observation of many different people in different
situations. Laws based upon common sense do not necessarily look much
like common sense when they have been put into words.

In practice, goverments are neither institutions
solely interested in retaining power,
nor clear-thinking bodies implementing justice and commom sense. They
combine many purposes and inherit many
traditions.
The laws that they make and enforce reflect this confusion.

natural phenomena (sing. a phenomenon)	явления природы
consistent	последовательный, непоколебимый
to impose (upon)	налагать (на)
to enforce (against)	применять (к), осуществлять
public law	публичное право
civil law	гражданское право
framework	основа, рамки
implementation of justice	осуществление правосудия
public opinion	общественное мнение
practical considerations	практические соображения
crime rate	уровень преступности
common sense	здравый смысл
to break an agreement (with)	нарушить соглашение (с)
to retain power	удерживать власть
to inherit traditions	перенимать, унаследовать традиции

Vocabulary Focus

I. Match the synonyms:

1.	consistent	a)	structure
2.	impose enforce	b)	accomplishment
3.	framework structure	c)	conduct
4.	implementation	d)	firm
5.	behaviour conduct	e)	cooperation
6.	interaction cooperation	f)	enforce
7.	agreement covenant	g)	covenant

II.
Complete the table with the words from the text using their related
forms:

Verb	Noun	Adjective
		various
describe
	regulation
institute
		motive
	interaction
		argumentative

III. Choose the correct item to fill in the gaps:

1. Amended
   road laws impose new speed limits ………….. drivers.

a)
upon b) in c) — d) at

2. They belong ………….. the same chess club.

a)
for b) to c) at d) in

3. Laws are enforced ………….. all citizens.

a)
on b) among c) at d) against

4. Civil laws provide a
framework ………….. interaction among citizens.

a)
for b) — c) in d) at

5. They may interfere ………….. elections by
the use of corrupt means.

a)
on b) along c) in d) at

6. A person should be
compensated ………….. losses when someone else breaks an
agreement with him or her.

a)
by b) for c) at d) of

7. Descriptive laws are
based ………….. describtion or classification rather than
explanation or prescription.

a) in b) at c) of d) upon

Соседние файлы в предмете [НЕСОРТИРОВАННОЕ]

• #
• #
• #
• #
• #
• #
• #
• #
• #
• #
• #

Law is not separate from the culture, history and times in which it exists. The study of law is not limited to learning legal rules. The study of law is the study of a people, a civilization, as it currently exists. As a discipline, the law it is also a series of concepts and rules that shifts to meet social changes. Understanding the legal environment of business, therefore, requires a broad understanding of the people and basic trends that influence the relationship between law and business.

In the age of the internationalization and globalization of the world economy, law and business are inextricably intertwined. Business is the organization of capital and labor to produce a product or service with every aspect of that organization regulated by law. It should be noted that the law has often been described as „a seamless web” in which principles of the law are hopelessly intertwined with each other. For this reason, any attempted classification or description of the many and varied legal subjects is necessarily inaccurate.

The word „law” has many meanings, and it is used in many disciplines. In physics the is the law of gravity, in economics there is the law of supply and demand. Even if the field of jurisprudence – which is the scientific study of the law – scholars have offered dozens of different definitions of law. Generally speaking, no word of such common usage is so hard to define precisely or is used to express a variety of concepts as is the word „law”.

Law has also been defined as the body of principles and rules which the courts apply in the decision of controversies. Law is made up of three elements:

1. formulated legislation, including constitutions, statutes, treaties, ordinances and codes;
2. rules of law announced by the courts in deciding cases; and
3. the system of legal concepts and techniques which forms the basis of judicial action.

However, for purposes of this text, the term „law” denotes the body of rules and regulations that is the product of the lawmaking process. Since business, social and political relationships are changing daily, a flexible legal systems is needed to accommodate the new and unprecedented problems that are constantly arising. Therefore, it is important to view law as a dynamic and evolving system of social control and not as an unchanging body of „dos and don’ts”. Finally, the law may be seen as a mechanism for adjusting claims of conflicting rights.

The total body of law by which we are governed comes sources of law. Sources of law are the materials and processes out of which law is developed. In modern nation states, the sources of law either comes from the written law or the unwritten law. Constitution, statutes, case law and regulations issued by government institutions. Sources of law for public international law and religious law differ, however, from the primary law of individual countries. The natural law theory argues that some rules objectively existing in the nature also are source of law, while legal positivism argues that only the rules made by sovereignty can be the source of law.

It should be noted that there are three main sources of the law in the world. They are:

1. legislation (it includes constitution and statutes which are prepared by Parliament),
2. case law or decisions of the higher court,
3. customary law or custom.

What is important to note is that the four major legal systems of the world today consist of civil law, common law, customary law and religious law. Though the systems differ in the contents of their law and the institutions and professions which surround them, the indigenous sources of laws are in fact similar in all four jurisdictions. However, each country often develops variations on each system or incorporates many other features into the system.

It should be remembered also that European Laws from European Union (and in the future perhaps, the European Convention on Human Rights) are also source of law.

Categorizations of legal systems of the world.

It should be noted that the legal system is a system for interpreting and enforcing the laws, in other words it is a legal regimen of a country consisting of:

1. a written or a real constitution,
2. primary legislation (statutes) enacted by the legislative body established by the constitution,
3. subsidiary legislation (bylaws) made by persons or bodies authorized by the primary legislation to do so,
4. customs applied by the courts on the basis of traditional practices, and
5. principles or practices of civil, common, Roman, religious or other code of law.

In order to clear the ground for the consideration of the more interesting concepts connected with the categorizations of the main legal systems, it is desiderable in the first instance to define the general meaning of the term: comparative law, as the instrument of analysis of differences and similarities between the law of different countries.

What is meant by comparative law?

In the strict sense, it is the theoretical study of legal systems by comparison with each other, and has a tradition going back over a century, although the birth of modern comparative law is generally attributed to Europe in the eighteenth century. According to the prevalent view, Montesquieu¹ is regarded as the „father” of comparative law. His comparative approach is obvious in the following excerpt from Chapter III of Book I of what many consider to be his masterpiece, „De l’esprit des lois”.

„The law of nations is naturally founded on this principle, that different nations ought in time of peace to do one another all the good they can and in the time of war was little injury as possible, without prejudicing their real interests (…)”²

„They³ should be adapted in such a manner to the people for whom the are framed that it should be a great chance if those of one nation suit another.

They should be in relation to the nature and principle of each government: whether they support it, as in the case of civil institutions.

They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs (…)”.

Also in Chapter XI ( entitled: „How to compare two different Systems of Laws”) of Book XXIX (Of the Manner of Composing Laws) he states that:

„In France the punishment for false witnesses is capital; in England it is not (…)”, and advise that:

„Wherefore, to determine which of those systems is most agreeable to reason, we must take them each as a whole and compare them in their entirety”.

Yet another excerpt where Montesquieu’s comparative approach is evident, is the following one from Chapter XIII (entitled: „That we must not separate Laws from the End for which they were made: of the Roman laws on Theft”) of Book XXIX:

„As the civil laws depend on the political institutions , because they are made for the same society, whenever there is a design of adopting the civil law of another nation, it would be proper to examine beforehand whether they have both the same institutions and the same political law”.

In this context, it should be added, however, that the comparative law was really born of the ashes of WW II, brought to America by a legal scholar fleeing persecution in Germany, Rudolf Schlesinger^4.

The purposes of comparative law is an academic study of separate legal systems, each one analyzed in its constitutive elements, i:e. how they differ in the different legal systems, and how their elements combine into a system⁵. Several disciplines have developed as separate branches of comparative law, including:

• comparative constitutional law,
• comparative administrative law,
• comparative civil law (in the sense of the law of torts, delicts, contracts and obligations),
• comparative commercial law (in the sense of business organizations and trade), and
• comparative criminal law

Studies of these specific areas may be viewed as micro- or macro comparative legal analysis, i.e. detailed comparisons of two countries, or broad-ranging studies of several countries. Comparative civil law studies, for instance, show how the law of private relations is organized, interpreted and used in different systems or countries.

It should be noted, however, that comparative law is different from the fields of general jurisprudence (legal theory), international law, including both public international law and private international law (also known as conflict of laws). Despite the differences between comparative law and these other legal fields, comparative law helps inform all of these areas of normativity⁶.

It is clear that comparative law is a very important discipline in communication between legal systems. In recent years it has gained in practical importance for two reasons.

The first is the increase globalization of world trade, involving the need to „do business” in unfamiliar legal systems. In this globalizing world, comparative law is important for it provides a platform for intellectual exchange in terms of law and it cultivates a culture of understanding in a diverse world⁷.

The second is the move towards harmonization of laws, and more recently towards codification, e.g., within the European Union, where several legal traditions coexist. Furthermore, comparative law helps in broadening horizons for law reformers and legislators around the world. It can also be helpful in international relations in shaping foreign policies⁸.

Wee turn now to the problem which this subchapter discusses, namely to classifications of legal systems.

Among the many different propositions of the categorizations of legal systems in the world, the most important are the following classifications:

1. Classification of legal system into seven groups (so-called „families”), in particular:⁹
   
   • The French group, under which are included the countries that codified their law either in 19^th or in the first half of 20^th century, using the Napoleonic code civil of year 1804 as a model; this includes countries and jurisdictions such as Italy, Portugal, Spain, U.S. state of Louisiana, states of South America (such as Brazil), the province of Quebec, Santa Lucia, Romania, the Ionian Islands, Egypt, Lebanon, etc.;
   • The German group;
   • The Scandinavian group (comprising the laws of Sweden, Norway, Denmark, Finland and Iceland);
   • The English group (incl. England, the United States, Canada, Australia and New Zealand inter alia);
   • The Russian group;
   • The Islamic group (used in the Muslim world);
   • The Hindu group.
2. Classification of legal systems, according to the different ideology inspired each one, into five groups of families:¹⁰
   
   • Western Laws¹¹, a group subdivided into the:
     • Romano-Germanic subgroup (comprising those legal systems where legal science was formulated according to Roman Law (see also: Civil Law));
     • Anglo-Saxon subgroup.
   • Soviet Law¹²
   • Muslim Law¹³
   • Hindu Law¹⁴
   • Chinese Law¹⁵

However, the most important classification of the legal systems of the world is following categorization:

• civil law,
• common law,
• religious law,
• socialist law,
• customary law,
• mixed law.

It should be noted that the two first types of law, i.e. civil law and common law, are the most widespread systems of law in the world, but their particular characteristics is presented in subchapter 1.1.3.

Religious law is seen as a branch of comparative and legal study. Further, it is argued here that comparative law itself may most usefully be seen as part of the tradition of legal philosophy. Far from being wholly academic, however, comparative law is a practical approach in the service of:

1. legal education,
2. the appreciation of treaty implementation, and
3. choice of law in the new world of public/private international law known as transnational law.

How are we to explicate the notion of a religious legal system?

We cannot do so by referring to particular legal system (canon law, for example) as the paradigm case of a religious legal system, for the simple reason that no legal system is self-evidently religious. The designation „religious system” cannot be read off nature but is the product of human reflection. Characterization of a legal system as religious law is always based on assessing whether it fulfils conditions we ourselves have stipulated. The stipulation that certain features are constitutive of religious systems is in turn anchored in an intuitive distinction between religious and non-religious systems. The theoretical notion of a religious legal system is the product of critical analysis, and while its must preserve the pre-analytic intuition in some sense, the overlap need not be complete¹⁶.

Generally speaking, the concept of a religious legal system is a cluster concept it is defined by several traits, not all of which need apply simultaneously. This generates a continuum. At one pole is the class of religious systems proper: those with all the traits of religious systems, at the other pole is a class of non-religious systems proper, with none of the said traits. In other words, both poles are likely to be empty classes: no existing legal system has or lacks all the traits in question. Actual legal systems are located on the continuum somewhere in between the two poles. A legal system’s religiosity is determined by its proximity or remoteness from one of the poles¹⁷. Note that we usually conceive of as secular systems also exhibit some traits of religious legal systems, and vice-versa.

It should be noted that there are four types of relationships between religious systems and legal systems. At one end of the spectrum is the religious system predominating over the legal system, called a theocracy. At the other end of the spectrum is the legal system dominating over the religious system, behavior typical of communist regimes, for example. In between the two ends of the spectrum of relationship-types, there are many different coexistence relationships between the two systems, which involve constitutional or voluntary separation of the two coexisting systems.

Religious law refers to the concept of a religious system or document being used as a legal resource, refers to the concept that the word of God is law. The use of religion for public law has a static and permanent quality, preventing improvement during legislative acts of government or development during judicial antecedent.

The most important kinds of religious law are Halakha in Judaism, Shari’ah in Islam, both of which denote the „path of follow”, and Canon law in Roman Catholic Church. In some cases these are proposed simply as individual moral guidance whereas in other cases these are proposed and may be used as the source for country’s legal system.

The Halakha is followed by traditional and conservation Jews in both ecclesiastical and civil relations. No country is completely governed by Halakha, but two Jewish people may decide, because of personal belief, to have an argument heard by a Jewish court, and be limit by its rulings¹⁸.

Shari’ah law governs some number of Islamic countries (Sunni and Shia), counting Saudi Africa and Iran, although most countries uses Shari’ah law as a complement to national law. It can refer to all characteristics of civil law, including property rights , contracts or public law¹⁹.

Canon law is not religious law, appropriately speaking, because it is not found in revelation. Instead, it is seen as human law motivated by the word of God and applying the petitions of that revelation to the actual condition of the Roman Catholic Church²⁰.

According to the Catholic Encyclopedia online via New Advent have the following definitions and description:

„Canon law is the body of laws and regulations made by or adopted by ecclesiastical authority, for the government of the Christian organization and its members… but the expression „canon law” (ins canonicum) becomes current only about the beginning of the twelfth century, being used in contrast with the „civil law” (ins civile), and later we have the „Corpus Iuris Canonici”, as we have the „Corpus Iuris Civilis”. Canon law is also called „ecclesiastical law” (ins ecclesiasticum); however, strictly speaking, there is a slight difference of meaning between the two expressions: cannon law denotes in particular the law of the „Corpus Iuris”, including the regulations borrowed from Roman law; whereas ecclesiastical authorities as such, including those made after the compiling of the „Corpus Iuris”.

In other words, Canon law normalizes the internal ordering of the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion. Canon law is rectified and modified by the legislative authority of the Church, such as councils of bishops, single bishops for their respective sees, the Pope for the entire Catholic Church²¹, and the British Parliament for the Church of England.

Socialist law is the official name of the legal system used in Socialist states. It is based on the civil law system, with major modifications and additions from Marxist-Leninist ideology. While civil law systems have traditionally put great pains in defining the notion of private property, how it may be acquired, transferred or lost, Socialist law systems provide for most property to be owned by the state or by agricultural co-operatives, and having special courts and laws for state enterprises²². Prior to the end of the Cold War, Socialist Law was generally ranked among the major legal systems of the world. However, many contemporary observers no longer consider it to be such, due to similarities with the civil law system and the fact that it is no longer in widespread use (following the dismantling of most communist or socialist states). Furthermore, many scholars argue that socialist law was simply not a separate legal classification²³. Although the command economy approach of the socialist states meant that property could not be owned, the Soviet Union always had a civil code, courts that interpreted this civil code, and a civil law approach to legal reasoning (thus, both legal process and legal reasoning were largely analogous to the French or German civil code system)²⁴.

Customary law is generally form custom²⁵, meaning long-established practices that have acquired the force of law by common adoption or acquiescence. It does not vary. Tribal common law is based on the values, mores and norms of a tribe and expressed in its customs, traditions and practices. In some tribes, the tribal common law has been set out in different court decisions and written opinions over time and has become case law.

Customary law is a recognized source of law within jurisdiction of the civil law tradition, inferior to both statutes and regulations. In addressing custom as a source of law within the civil law tradition, it should be clearly indicate, that its importance is slight and decreasing. However, in Canada customary aboriginal law has a constitutional foundation and for this reason has increasing influence. Similarly, in the Scandinavian countries customary law continues to exist and has great influence. It should be added that Customary law is also used in some Thirds World countries, such as in Africa, usually used alongside common or civil law. In law, custom can be described as the established patterns of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defence of „what has always been done and accepted by law”. Generally customary law exists where:

1. a certain legal practice is observed, and
2. the relevant actors consider it to be law (opinio iuris).

In international law, customary law refers to the Law of Nations or the legal norms that have developed through the customary exchanges between states over time, whether based on diplomacy or aggression. Essentially, legal obligations are believed to arise between states to carry out their affairs consistently with past accepted conduct. These customs can also change based on the acceptance or rejection by states of particular acts. Some principles of customary law have achieved the force of peremptory norms, which cannot be violated or altered except by a norm of comparable strength. These norms are said to gain their strength from universal acceptance, such as the prohibitions against genocide and slavery.

Today, hardly any political entity (country or dependent territory) in the world operates under legal system which could be said to be typically and wholly customary. Custom can take on many guises, depending on whether it is rooted in wisdom born of concrete daily experience or more intellectually based on great spiritual or philosophical traditions. Be that as it may, customary law (as a system, not merely as an accessory to positive law) still plays a sometimes significant role, namely in matters of personal status, in a relatively high number of political entities with mixed legal systems (see below).

Mixed legal systems.

In the website produced at the at the Faculty of Law of the University of Ottawa we may found the following explanation of the term „mixed law”:

The term „mixed” was selected arbitrarily over „hybrid” or „composite”. It should not be understood in the restricted sense but as the category which includes political entities where two or more legal systems apply cumulatively or interactively. It should be clearly indicate that this category also includes entities where there is a juxtaposition of systems as a result of more or less clearly defined fields of application²⁶.

On this concept we have distinguish apart from the five main mono-systems the following classification of mixed, or pluralistic legal systems (see table below).

Table 1. The legal mono-systems and mixed systems of the world

* United Arab Emirates
** The legal system of Vietnam is based on socialist legal theory, French civil law system and on the Confucian law.
*** Bahrain, Qatar, Somalia, Yemen

Source:

1. http:/www.juriglobe.ca/eng/pib-rnb/index-syst.php
2. E. Örücü, „What is Mixed Legal System: Exclusion or Expansion?”, Electronic Journal of Comparative Law, Vol. 12/1 (May 2008), pp. 1–18,
3. C.H. van Rhee, „Mixed legal systems and civil procedure”, 10pp. Remco.vanrhee@metaiur.unimaas.nl, (Maastricht University).

It should be noted that the law in Africa is a diverse mix of common law, civil law and religious law systems. Law in Africa has been shaped primarily through different countries inheritance of law which existed in Europe through the nineteenth century. For instance, the primary sources of South Africa legislation were Roman-Dutch and English Common law, imports of Dutch settlements and lawmaking bodies have existed within South Africa over time. As a general rule South Africa follows English Law in the areas of procedural law, law of contract and law of evidence; while Roman Dutch Common law is followed in the South African law of delict (tort), law of persons, law of things, family law, etc.

The sources of South African law are:

1. statutory law by the legislative body (the most important of which is the Constitution)
2. common law (which includes Roman-Dutch „old authorities and judicial precedent gleaned from case law),
3. African customary law, and
4. foreign and international law.

The Egyptian judicial system is based on European, primarily French, legal concepts and methods. Under the several governments during the presidency of Hosni Mubarak, the courts have demonstrated increasing independence, and principles of due process and judicial review have gained greater respect. The legal code of Egypt is derived largely from the Napoleonic Code. Marriage and personal status are primarily based on the religious law of the individual concerned. Thus, there are three forms of family law in Egypt: Islamic, Christian, and secular (based on the French family laws).

A polycentric legal system, called Xeer developed exclusively in the Horn of Africa more than millennium ago and is still widely used by the Samali people. Under this system, elders serve as judges and help mediate cases using precedents. Xeer is a good example of how customary law can work in lieu of civil law, and is a good approximation of what is thought of as natural law. Under Xeer, there is no authority that dictates what the law should be. The law is instead discovered by judges as they determine the best way to resolve a dispute. As with law systems in Western states, the Xeer legal system also demands a certain amount of specialization of different functions within the legal framework. Thus, one can find odayal (judges), xeer boggeyaal (jurists), guurtiyaal (detectives), garxajiyall (attorneys), murkhaatiyaal (witnesses) and waranle (police officers) to enforce the law²⁷.

Другие языки