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Laws - Psychology Wiki





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Law [1] is a system of rules. usually enforced through a set of institutions. [2] It shapes politics. economics and society in numerous ways and serves as the foremost social mediator in relations between people. Writing in 350 BC, the Greek philosopher Aristotle declared, "The rule of law is better than the rule of any individual." [3]

All legal systems deal with the same basic issues, but each country categorises and identifies its legal subjects in different ways. A common distinction is that between "public law " (a term related closely to the state. and including constitutional, administrative and criminal law), and "private law " (which covers contract, tort and property). [5] In civil law systems, contract and tort fall under a general law of obligations. while 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", [6] although there are many further disciplines which may be of greater practical importance.

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. The sources for public international law development are custom. practice and treaties between sovereign nations, such as the Geneva Conventions. Public international law can be formed by international organisations. such as the United Nations (which was established after the failure of the League of Nations to prevent the Second World War ), [7] the International Labour Organisation. the World Trade Organisation. or the International Monetary Fund. Public international law has a special status as law because there is no international police force, and courts (e.g. the International Court of Justice as the primary UN judicial organ) lack the capacity to penalise disobedience. [8] However, a few bodies, such as the WTO, have effective systems of binding arbitration and dispute resolution backed up by trade sanctions. [9]
  • 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. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958. [10]
  • European Union law is the first, and so far, only example of a supranational legal framework. Given the trend of 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 gathered their authority in a system of courts and political institutions. These institutions are allowed the ability to enforce legal norms both against or for member states and citizens in a manner which is not possible through public international law. [11] As the European Court of Justice said in the 1960s, European Union law constitutes "a new legal order of international law" for the mutual social and economic benefit of the member states. [12]

The French Declaration of the Rights of Man and of the Citizen. whose principles still have constitutional value.

Constitutional 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. A "constitution" is simply those laws which constitute the body politic. from statute. case law and convention. A case named Entick v Carrington [13] 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." [14]

The fundamental constitutional principle, inspired by John Locke. holds 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. [15] 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'Etat set up in 1799, as Napoleon assumed power in France. [16]

Criminal law (also known as penal law) pertains to crimes and punishment. [17] It thus regulates the definition of and penalties for offences found to have a sufficiently deleterious social impact. [18] Investigating, apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure. [19] The paradigm case of a crime lies in the proof, in the concept of beyond reasonable doubt. the judgement that a person is guilty of two things. First, the accused must commit an act which is deemed by society to be criminal, or actus reus (guilty act). [20] Second, the accused must have the requisite malicious intent to do a criminal act, or mens rea (guilty mind). However for so called "strict liability " crimes, an actus reus is enough. [21] Criminal systems of the civil law tradition distinguish between intention in the broad sense (dolus directus and dolus eventualis ), and negligence. Negligence does not carry criminal responsibility unless a particular crime provides for its punishment. [22]

Acts of crime include murder. assault. fraud and theft. In exceptional circumstances defences can apply to specific acts, 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 Mignonette. sailing from Southampton to Sydney. sank. Three crew members and Richard Parker, a 17 year old cabin boy, were stranded on a raft. They were starving and the cabin boy was 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 was overwhelmingly supportive of the crew's right to preserve their own lives. In the end, the Crown commuted their sentences to six months in jail. [23]

Criminal law offences are viewed as offences against not just individual victims, but the community as well. [18] 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 condone capital 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. [24] On the international field, 108 are members of the International Criminal Court. which was established to try people for crimes against humanity. [25]

Contract law regulates the exchange of promises between parties to perform or refrain from performing an act enforceable in a court of law. Contracts can be formed from oral or written agreements. The concept of a "contract" is based on the Latin phrase pacta sunt servanda (agreements must be kept). [26] In common law jurisdictions, three key elements to the creation of a contract are necessary: offer and acceptance. consideration and the intention to create legal relations. In Carlill v Carbolic Smoke Ball Company a medical firm advertised that its new wonder drug, the smokeball, would cure people's flu, and if it did not, the buyers would get ? 100. 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". [27]

"Consideration" indicates the fact that all parties to a contract have exchanged something of value. Some common law systems, including Australia, are moving away from the idea of consideration as a requirement. The idea of estoppel or culpa in contrahendo. can be used to create obligations during pre-contractual negotiations. [28] In civil law jurisdictions, consideration is not required for a contract to be binding. [29] 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) [30] 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. [31]

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. [32] Under negligence law, the most common form of tort, the injured party could potentially claim compensation for his injuries from the party responsible. The principles of negligence are illustrated by Donoghue v Stevenson. [33] A friend of Mrs Donoghue ordered an opaque bottle of ginger beer (intended for the consumption of Mrs Donoghue) in a cafe in Paisley. Having consumed half of it, Mrs Donoghue poured the remainder into a tumbler. The decomposing remains of a snail floated out. She claimed to have suffered from shock, fell ill with gastroenteritis 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." [34]

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. [33] Another example of tort might be a neighbour making excessively loud noises with machinery on his property. [35] 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. [36] More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes, [37] when statute does not provide immunity. [38]

Law spreads far beyond the core subjects into virtually every area of life. Three categories are presented for convenience, though the subjects intertwine and overlap.

Law and society File:UnisonStrikeRallyOxford20060328 KaihsuTai.jpg
  • Labour law 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. civil rights and human rights law 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 (which founded the European Court of Human Rights ) and the U.S. Bill of Rights. The Treaty of Lisbon makes the Charter of Fundamental Rights of the European Union legally binding in all member states except Poland and the United Kingdom. [39]
  • Civil procedure and criminal procedure concern the rules that courts must follow as a trial and appeals proceed. Both concern a citizen's right to a fair trial or hearing.
  • Evidence law involves which materials are admissible in courts for a case to be built.
  • Immigration law 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 refers to the rights people have to social insurance, such as jobseekers' allowances or housing benefits.
  • Family law covers marriage and divorce proceedings, the rights of children and rights to property and money in the event of separation.
Law and commerce
  • Company law sprang from the law of trusts, on the principle of separating ownership of property and control. [40] The law of the modern company began with the Joint Stock Companies Act 1856. passed in the United Kingdom, which provided investors with a simple registration procedure to gain limited liability under the separate legal personality of the corporation.
  • Commercial law 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 medi?val Lex Mercatoria. The UK Sale of Goods Acts and the US Uniform Commercial Code are examples of codified common law commercial principles.
  • Admiralty law and the Law of the Sea lay a basic framework for free trade and commerce across the world's oceans and seas, where outside of a country's zone of control. Shipping companies operate through ordinary principles of commercial law, generalised for a global market. Admiralty law also encompasses specialised issues such as salvage. maritime liens. and injuries to passengers.
  • Intellectual property law aims at safeguarding creators and other producers of intellectual goods and services. These are legal rights (copyrights. trademarks. patents. and related rights ) which result from intellectual activity in the industrial, literary and artistic fields. [41]
  • Restitution deals with the recovery of someone else's gain, rather than compensation for one's own loss.
  • Unjust enrichment is the third pillar of civil law (along with contract and tort). When someone has been unjustly enriched (or there is an "absence of basis" for a transaction) at another's expense, this event generates the right to restitution to reverse that gain.
Law and regulation File:1930-67B.gif
  • Tax law involves regulations that concern value added tax. corporate tax. income tax .
  • Banking law 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 .
  • Regulation deals with the provision of public services and utilities. Water law is one example. 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. 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 is increasingly important, especially in light of the Kyoto Protocol and the potential danger of climate change. Environmental protection also serves to penalise polluters within domestic legal systems.

In general, legal systems can be split between civil law and common law systems. [42] The term civil law should not be confused with civil law as a group of legal subjects, as distinct from criminal or public law. A third type of legal system—still accepted by some countries—is religious law, based on scriptures and interpretations thereof. The specific system that a country is ruled by is often determined by its history, connections with other countries, or its adherence to international standards. The sources that jurisdictions adopt as authoritatively binding are the defining features of any legal system. Yet classification is a matter of form rather than substance, since similar rules often prevail.

Civil law is the legal system used in most countries around the world today. In civil law the sources recognised as authoritative are, primarily, legislation—especially codifications in constitutions or statutes passed by government—and custom. [43] Codifications date back millennia, with one early example being the Babylonian Codex Hammurabi. Modern civil law systems essentially derive from the legal practice of the Roman Empire whose texts were rediscovered in medieval Europe. Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class. [44] Instead a lay person, iudex. was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised. [45] Each case was to be decided afresh from the laws of the state, which mirrors the (theoretical) unimportance of judges' decisions for future cases in civil law systems today. During the 6th century AD in the Eastern Roman Empire. the Emperor Justinian I codified and consolidated the laws that had existed in Rome, so that what remained was one-twentieth of the mass of legal texts from before. [46] This became known as the Corpus Juris Civilis. As one legal historian wrote, "Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before." [47] Western Europe, meanwhile, slowly slipped into the Dark Ages. and it was not until the 11th century that scholars in the University of Bologna rediscovered the texts and used them to interpret their own laws. [48] Civil law codifications based closely on Roman law, alongside some influences from religious laws such as Canon law and Islamic law. [49] continued to spread throughout Europe until the Enlightenment ; then, in the 19th century, both France, with the Code Civil. and Germany, with the Burgerliches Gesetzbuch. modernised their legal codes. Both these codes influenced heavily not only the law systems of the countries in continental Europe (e.g. Greece), but also the Japanese and Korean legal traditions. [50] Today countries that have civil law systems range from Russia and China to most of Central and Latin America. [51]

Common law and equity are legal systems where decisions by courts are explicitly acknowledged to be legal sources. The "doctrine of precedent", or stare decisis (Latin for "to stand by decisions") means that decisions by higher courts bind lower courts. Common law systems also rely on statutes, passed by the legislature, but may make less of a systematic attempt to codify their laws than in a "civil law" system. Common law originated from England and has been inherited by almost every country once tied to the British Empire (except Malta, Scotland. the U.S. state of Louisiana and the Canadian province of Quebec ). In medieval England, the Norman conquest of England led to a unification of various tribal customs and hence a law "common" to the whole country. Perhaps influenced by Islamic legal practices around the time of the Crusades. [52] the common law developed when the English monarchy had been weakened by the enormous cost of fighting for control over large parts of France. King John had been forced by his barons to sign a document limiting his authority to pass laws. This "great charter" or Magna Carta of 1215 also required that the King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country. [53] A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralised. In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five. [54] This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law. [55] As a result, as time went on, increasing numbers of citizens petitioned the King to override the common law, and on the King's behalf the Lord Chancellor gave judgment to do what was equitable in a case. From the time of Sir Thomas More. the first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery. At first, equity was often criticised as erratic, that it "varies like the Chancellor's foot". But over time it developed solid principles. especially under Lord Eldon. [56] In the 19th century the two systems were fused into one another. In developing the common law and equity, academic authors have always played an important part. William Blackstone. from around 1760, was the first scholar to describe and teach it. [57] But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked. [58]

Religious law is explicitly based on religious precepts. Examples include the Jewish Halakha and Islamic Sharia—both of which translate as the "path to follow"—while Christian canon law also survives in some church communities. Often the implication of religion for law is unalterability, because the word of God cannot be amended or legislated against by judges or governments. However a thorough and detailed legal system generally requires human elaboration. For instance, the Quran has some law, and it acts as a source of further law through interpretation, [59] Qiyas (reasoning by analogy), Ijma (consensus) and precedent. This is mainly contained in a body of law and jurisprudence known as Sharia and Fiqh respectively, which at least one scholar has claimed had an influence on the early development of the common law, [52] as well as some influence on civil law. [60] Another example is the Torah or Old Testament. in the Pentateuch or Five Books of Moses. This contains the basic code of Jewish law, which some Israeli communities choose to use. The Halakha is a code of Jewish law which summarises some of the Talmud's interpretations. Nevertheless, Israeli law allows litigants to use religious laws only if they choose. Canon law is only in use by members of the clergy in the Roman Catholic Church. the Eastern Orthodox Church and the Anglican Communion .

Until the 18th century, Sharia law was practiced throughout the Muslim world in a non-codified form, with the Ottoman Empire 's Mecelle code in the 19th century being first attempt at codifying elements of Sharia law. Since the mid-1940s, efforts have been made, in country after country, to bring Sharia law more into line with modern conditions and conceptions. [61] In modern times, the legal systems of many Muslim countries draw upon both civil and common law traditions as well as Islamic law and custom. The constitutions of certain Muslim states, such as Egypt and Afghanistan, recognise Islam as the religion of the state, obliging legislature to adhere to Sharia. [62] Saudi Arabia recognises Quran as its constitution, and is governed on the basis of Islamic law. [63] Iran has also witnessed a reiteration of Islamic law into its legal system after 1979. [64] During the last few decades, one of the fundamental features of the movement of Islamic resurgence has been the call to restore the Sharia, which has generated a vast amount of literature and affected world politics. [65]

Sociology of law is a diverse field of study that examines the interaction of law with society and overlaps with jurisprudence, economic analysis of law and more specialised subjects such as criminology. [66] The institutions of social construction and legal frameworks are the relevant areas for the discipline's inquiry. At first, legal theorists were suspicious of the discipline. Kelsen attacked one of its founders, Eugen Ehrlich. who sought to make distinct the differences between positive law, which lawyers learn and apply, and other forms of 'law' or social norms that regulate everyday life, generally preventing conflicts from reaching lawyers and courts. [67]

Around 1900 Max Weber defined his "scientific" approach to law, identifying the "legal rational form" as a type of domination, not attributable to people but to abstract norms. [68] Legal rationalism was his term for a body of coherent and calculable law which formed a precondition for modern political developments and the modern bureaucratic state and developed in parallel with the growth of capitalism. [66] Another sociologist, Emile Durkheim. wrote in The Division of Labour in Society that as society becomes more complex, the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions. [69] Other notable early legal sociologists included Hugo Sinzheimer. Theodor Geiger. Georges Gurvitch and Leon Petrazycki in Europe, and William Graham Sumner in the U.S. [70]



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