Law, body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behaviour of its members. In the most general sense, there are two kinds of law: natural law and positive law. Natural law has been recognized since the ancient world to be a general body of rules of right conduct and justice common to all mankind. This concept grew from the observation of the operation of the laws of nature and their uniformity.
Positive law, on the other hand, consists of regulations formulated by the heads of a country or society. In many cases, natural laws have been written into positive laws by governments. The prohibition against killing, for example, is common to virtually all of mankind, and most nations have enacted laws against it.
The nature and functions of law have varied throughout history. In modern societies, some authorized body such as a legislature or a court makes the law. It is backed by the coercive power of the state, which enforces the law by means of appropriate penalties or remedies.
Law serves a variety of functions. Laws against crimes, for example, help to maintain a peaceful, orderly, relatively stable society. Courts contribute to social stability by resolving disputes in a civilized fashion. Property and contract laws facilitate business activities and private planning. Laws limiting the powers of government help to provide some degree of freedom that would not otherwise be possible. Law has also been used as a mechanism for social change; for instance, at various times laws have been passed to inhibit social discrimination and to improve the quality of individual life in matters of health, education, and welfare.
Natural Law
Law is not completely a matter of human enactment; it also includes natural law. The best-known version of this view, that God's law is supreme, has had considerable influence in many Western societies. The civil rights movement, for example, was at least partially inspired by the belief in natural law. Such a belief seems implicit in the view that law should serve to promote human dignity, as for instance by the enforcement of equal rights for all.
Natural Law, in ethical philosophy theology law, and social theory, a set of principles, based on what are assumed to be the permanent characteristics of human nature, that can serve as a standard for evaluating conduct and civil laws. Natural law is considered fundamentally unchanging and universally applicable. Thus, natural law may be considered an ideal to which humanity aspires or a general fact, the way human beings usually act. Natural law is contrasted with positive law, the enactments of civil society.
Probably the most famous of the ancient God-giving
code, however, is that found in the first five books of the Bible, the laws of
Moses. The heart of this code is the Ten Commandments presented by Moses to the
people of
The Ten Commandments
The ancient Greek philosophers were the first to elaborate a doctrine of natural law. In the 6th century BC, Heraclitus spoke of a common wisdom that pervades the whole universe, "for all human laws are nourished by one, the divine". Aristotle distinguished between two kinds of justice: "A rule of justice is natural that has the same validity everywhere, and does not depend on our accepting it or not; a rule is legal [conventional] that in the first instance may be settled in one way or the other indifferently." The Stoics, especially the philosopher Chrysippus of Soli, constructed a systematic natural law theory. According to Stoicism, the whole cosmos is rationally ordered by an active principle, the Logos, variously named God, mind, or fate. Every individual nature is part of the cosmos. To live virtuously means to live in accord with one's nature, to live according to reason. Because passion and emotion are considered irrational movements of the soul, the wise individual seeks to eradicate the passions and consciously embrace the rational life. This doctrine was popularized among the Romans by the 1st-century BC orator Cicero, who gave a famous definition of natural law in his De Republica: "True law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. . There will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times." In the Corpus Juris Civilis a compilation and codification of Roman legal material prepared in 534 under Emperor Justinian I, a jus naturale is acknowledged.
Christian Conceptions
Christians found the natural law doctrine of the Stoics quite compatible with their beliefs. St Paul spoke of Gentiles who do not have the Mosaic law doing "by nature what the law requires" (Romans 2:14).
The teaching of St Thomas Aquinas on the natural law is the most widely known. In his Summa Theologiae (Summary Treatise of Theology, 1265-1273) Aquinas called the rational guidance of creation by God the "Eternal Law". The Eternal Law gives all beings the inclination to those actions and aims that are proper to them. Thus, according to Aquinas, it is possible to distinguish good from evil by the natural light of reason.
Modern Theories
The Dutch jurist Hugo Grotius is considered the founder of the modern theory of natural law. The German jurist Samuel von Pufendorf, the first to hold a chair of natural law in a German university, more fully developed the concept of a law of nature. The 17th-century English philosophers Thomas Hobbes and John Locke proposed an original state of nature from which a social contract arose and combined this theory with that of natural law. Locke's doctrine that nature had endowed human beings with certain inalienable rights that could not be violated by any governing authority was incorporated in the American Declaration of Independence
In the 19th century a critical spirit dominated discussions of natural law. The existence of a natural law was generally regarded as unprovable, and it was largely replaced in legal theory by utilitarianism, formulated by the English philosopher Jeremy Bentham as "the greatest happiness of the greatest number", and by legal positivism, according to which law is based simply on "the command of the ruler", in the phrase of the English jurist John Austin.
The atrocities committed by Nazi Germany during World War II revived interest in a higher standard than positive law. The United Nations (UN) Charter declared the "faith" of that organization in human rights, and on December 10, 1948, the UN General Assembly adopted the Universal Declaration of Human Rights, which, however, is more a moral pronouncement than a legally enforceable treaty.
Development of Law
Code (law), in jurisprudence, a systematic compilation of law in written form, issued by rulers in former times, and promulgated by legislative authority after the rise of representative governments. Early legal codes were little more than statements of the bodies of customs that had obtained the force of law in civilized communities.
Ancient Codes
Some historians include among early codes the Book of the Covenant and the Book of the Law of the Old Testament
The heart of this code is the Ten Commandments presented by Moses to the people of Israel. These commandments are the basic summary of all moral law designed to regulate the behavior of individuals with regard to each other.
The Ten Commandments
legal code known in its entirety is the Babylonian cuneiform Code of Hammurabi of the 18th century BC, discovered in 1901. Four fragments of an earlier Babylonian cuneiform code, known as the Code of Lipit-Ishtar, were discovered in about 1900 and deciphered in 1948.
One of the best known of the early codes, or collections of written laws, is that of the Babylonian cuneiform Code of Hammurabi, king of Babylon, who lived about 1800 BC.
Four fragments of an earlier Babylonian cuneiform code, known as the Code of Lipit-Ishtar, were discovered in about 1900 and deciphered in 1948.
The Code of Hammurabi is the most complete remnant of Babylonian law. The background to the code is the body of Sumerian law under which city-states had lived for centuries. The code itself was advanced far beyond ancient tribal customs. The stela on which the code is inscribed originally stood in Babylon's temple of Marduk, the national god. It was discovered at the site of ancient Susa in 1901 by the French archaeologist Jean-Vincent Scheil. He presented it to the Louvre.
The code consists of 282 case laws, or judicial decisions, collected toward the end of Hammurabi's reign. The decisions deal with such matters as family, marriage, and divorce; tariffs; trade and commerce; prices; and criminal and civil law.
In criminal law the ruling principle for punishment was the ancient lex talionis, or law of retaliation. Penalties were calculated according to the nature of the offense. Capital punishment was common, and the various means of execution were prescribed, depending on the nature of the crime. Neither imprisonment nor forced labor is mentioned in the code. Unintended manslaughter was punished by a fine. Willful murder was not mentioned. Carelessness and neglect in the performance of work was severely punished. In general, the penalties prescribed were an improvement over the brutality of previous Assyrian law.
The ancient Greek city-states began codifying laws in the 7th century BC. The Laws of Gortyn, named after the ancient town of Gortyna, Crete, are regarded as the closest to a systematic statement of ancient Hellenic law.
The Twelve Tables of ancient Roman law are often cited as a classic example of an early code.
Law of the Twelve Tables, earliest code of Roman law. It was formalized in 451-450 BC from existing oral law by ten magistrates, called decemvirs, and inscribed on tablets of bronze or wood, which were posted in the principal Roman Forum. According to tradition, the code was drawn up to appease the plebs, who maintained that their liberties were not adequately protected by the unwritten law as interpreted by patrician judges. Originally, ten tablets of laws were inscribed; two more were added the following year. The tablets were destroyed in the sack of Rome by the Gauls in 390 BC, but a number of the laws are known through references in later Latin literature. The Twelve Tables covered all categories of the law and also included specific penalties for various infractions. . They were largely a declaration of existing customs concerning such matters as property, payment of debts, and appropriate compensation or other remedies for damage to people. The code underwent frequent changes but remained in effect for nearly a thousand years.
The Twelve Tables serve as a historical basis for the widespread modern belief that fairness in law demands that it be in written form. These tables and their Roman successors, including the Justinian Code, led to civil law codes that provide the main source of law in much of modern Europe, South America, and elsewhere.
Other compilations of law include the Hindu Code of Manu, believed to date from about AD 400, and the code of the Chinese Tang dynasty, issued in AD 630.
All other societies in the ancient world devised sets of laws. In the 7th century BC, a lawgiver named Draco drew up a very harsh code that punished offenses, no matter how trivial, with death. Not many years later, another Greek lawgiver, Solon, repealed all but the laws dealing with murder. In the Greek city-state of Sparta, there was a legendary lawgiver named Lycurgus who, after giving the Spartans a code of law, left the city with the instruction that the laws were not to be changed until he returned. He never did return.
Roman Law
The most complete and complex system of laws in the ancient world was developed by the Romans. It was the product of many centuries of civilization, from the early years of the Republic until the end of the Empire. In the 6th century AD, the emperor Justinian collected and organized the laws for use as the Roman Civil Law. Roman law has strongly influenced the general character of the laws in every nation of Western Europe except England.
Roman Law, in general usage, legal system developed by the Romans from the time of their first codification of law, known as the Law of the Twelve Tables, in 450 BC, to the death of Justinian I, ruler of the Byzantine Empire, in AD 565. Specifically, the term designates the codification of law known as the Corpus Juris Civilis, also called the Justinian Code, made under the auspices of Justinian, that forms the basis of the civil law of many continental European countries.
Of all the codes of antiquity, that of the Roman emperor Justinian I, entitled the Corpus Juris Civilis (Body of Civil Law) and known as the Codex Justinianus, Justinian Code, or simply The Code, most closely resembles the codes of later times. It was in part a compilation and consolidation of statute law, but it lacked the systematic arrangement and the concentration on a single branch of the law, such as criminal law or civil law, that are essential features of later codes.
Prior to the Twelve Tables, the law of Rome was religious in character, and its interpretation rested with priests, who were members of the patrician class. Complaints and agitation by the plebs, the common people, led to the writing of the existing legal customs and the addition of new principles unknown in the customary law. The Law of the Twelve Tables thus drafted was submitted to and accepted by the popular assembly. This code set forth simple rules suitable for an agricultural community; it established equal law for patricians and plebs and was prized by the Romans as the source of all public and private law. The legal system established under this code, and the body of rules that developed around it, applied exclusively to Roman citizens and was known as the jus civile.
In the 11th century, however, the law books of Justinian were studied and used in Lombardy, in southern France, and in Barcelona, Spain. In Italy, the laws of Justinian were taught in a law school at Pavia. Early in the 12th century a more thorough study of these texts was inaugurated at Bologna. The systematic study of Roman law spread from Italy throughout Europe from the 12th century onwards. With the revival of European commerce and the inadequacy of medieval law to meet the requirements of the changing economic and social conditions, Roman law became incorporated in the legal systems of many continental European countries.
Development of Law II
After the fall of the Roman Empire in the West, AD 476, the Christian church, as the strongest institution in society, became a major lawmaking and law enforcement body. Called canon law (canons are regulations), a body of rules formulated by the church was designed to regulate human behavior, with respect to religious matters primarily. But it eventually came to apply to the actions of people on social, economic, and political levels as well.
In England, each locality had its own laws based on custom and tradition. After the Norman Conquest, 1066, judges appointed by the king moved from one place to another to administer these local laws. As time passed, local laws gave way to judges' interpretations of a broader system of laws accepted in more than one area. Eventually the decisions of the judges, constantly modified by later decisions, were accepted as the body of English common law.
In France, under the guidance of Napoleon, a civil code was enacted in 1804. With revisions, it still remains in force and has been a major influence in the legal systems of most European countries and in Latin America. The Code Napoleon was made necessary by the diversity and confusion of laws that had developed in France and other parts of Europe during the Middle Ages and early modern period. The premise for the code was the idea that, for the first time in history, a law based purely on common sense should be created, free of all past prejudices and inequities. Under the code all citizens were recognized as equal, and all class privileges were done away with.
The influence of the Napoleonic code was somewhat diminished at the start of the 20th century by the introduction of the German Civil Code in 1900 and the Swiss Civil Code in 1912.
Development of Modern Codes
The influence of the Justinian Code was great. Long after Rome fell, Roman law, as codified by Justinian, continued to serve as a source of law in Europe in the form of civil law. Through a 13th-century Spanish code called Siete Partidas (Seven Parts) that was based partly on the Justinian Code, the Justinian Code was later extended to the New World and, with the Siete Partidas, became the basis for the legal systems of most of Latin America.
A modern code is designed to provide a comprehensive statement of the laws in force in a single branch of the law in a logical and convenient arrangement and in precise and unambiguous phraseology. Modern codes include codes of civil, criminal, and public law and codes of civil and criminal procedures.
Statesmen of modern times have regarded legal codes as necessary instruments of national unity and central authority. Napoleon planned the Code Civil des Français, later renamed the Code Napoléon, as a means of consolidating his realm. The Code Napoléon, one of the most important modern codes, is the basis of the legal systems of Belgium, the Netherlands, Romania, Italy, Portugal, Santo Domingo, Haiti, the state of Louisiana in the United States, and the province of Quebec in Canada. It also influenced the legal systems of a number of Latin American countries.
British Codes
In Great Britain, the legal system is based on common law, and codification has largely been a problem of consolidating common and statute law.
US Codes
In the United States, law is derived largely from English common law; but the problem of codification has been complicated by the existence of a multiplicity of sovereign governmental jurisdictions, and two general sets of codes have developed, federal and state codes, with divergences on many points. However, largely as a result of the pioneering work of the American jurist David Dudley Field, considerably more than half the states have adopted uniform codes of civil and criminal procedure, and all of them have enacted uniform legislation with respect to negotiable credit instruments.
The common law systems of England, and later of the United States, developed in a different manner. Before the Norman Conquest (1066), England was a loose confederation of societies, the laws of which were largely tribal and local. The Anglo-Norman rulers created a system of centralized courts that operated under a single set of laws that superseded the rules laid down by earlier societies. This legal system, known as the common law of England, began with common customs, but over time it involved the courts in lawmaking that was responsive to changes in society.
Substantive and Procedural Law
In broad terms, substantive law defines the rights and duties of people; procedural law defines and deals with procedures for enforcing those rights and duties. Substantive law determines a wide variety of matters-for example, what is required to form a contract, what the difference is between larceny and robbery, when one is entitled to compensation for an injury, and so on.
The rules of procedure and jurisdiction determine the court or administrative agency that may handle a claim or dispute; the form of the trial, hearing, or appeal; the time limits involved; and so on. Related rules also cover the kinds of evidence that may be presented. Such rules are more limiting in trial courts than in administrative agencies. The fine points of procedural law are considerable, but they are generally thought to be indispensable to whatever efficiency and fairness law may have.
Public Law
Public law concerns the relationships both within a government and between governments and individuals. Because the Roman codes were almost entirely limited to the private area, public law is usually not codified, that is, arranged systematically into a set code. In civil law countries, separate administrative courts adjudicate claims and disputes between the various branches of government and citizens, and many lawyers specialize in public law.
Public law is not quite so clearly demarcated in the United Kingdom. Under the common law approach the same courts handle public and private litigation. Because the United Kingdom has no written constitution, basic principles pertaining to government powers and limits and to fundamental individual rights are found in acts of Parliament, judicial opinions, and tradition.
Historically, criminal law in the United Kingdom included crimes defined by the courts. The public law nature of the area is further emphasized by other constitutional protections such as the right of the accused to remain silent and the right to effective counsel.
Private Law
Private law involves the various relationships that people have with one another and the rules that determine their legal rights and duties among themselves. The area is concerned with rules and principles pertaining to private ownership and use of property, contracts between individuals, family relationships, and redress by way of compensation for harm inflicted on one person by another. Historically, government involvement was usually minimal. Private law has also operated to provide general guidelines and security in private arrangements and interactions in ways that are complementary to morality and custom but that are not necessarily enforceable in a court of law, such as noncontractual promises and agreements within an association of private individuals.
The Main Branches of Positive Law
In modern legal systems there are two primary branches of law. These are criminal law and civil law.
Criminal law defines offenses so harmful to society that violations are punished by fines, imprisonment, or even death. Such offenses include murder, armed robbery, theft, rape, kidnapping, assault, and embezzlement. In the late 20th century, many nations have added laws on airplane hijacking and terrorist activities to their books because both involve violence against people.
Civil laws define the rights and liabilities of individuals in relation to each other and to society. Actions in civil law may enable one person to recover money from another, for example, but it does not require payment of money to the government in the form of a fine. If, for instance, one person hires another to do work for him, and they sign a contract, the individual must do the work or he is considered to have broken the contract. The one who breaks the contract may be sued in court. One of the most common types of civil actions is the divorce trial, in which a contract is at issue.
In a criminal action a governmental unit asks the court to try an individual who is alleged to have committed a specific offense.
In civil cases, generally one person the plaintiff asks the court to determine whether another person the defendant has violated the plaintiff's rights in some way and should, therefore, make up for it in some way. Usually the plaintiff asks the court to order the defendant to pay an amount owed, either because of a promise in the form of a contract or by way of damages because the defendant caused injury to the plaintiff. If the court agrees, it will issue an injunction, an order that a person take some action (such as deliver goods that were promised in a contract) or refrain from doing something (such as playing a radio so loud that it disturbs the neighbors). Violation of an injunction, however, changes the action from a civil one to a criminal one, because failing to carry out the instructions of the court is a criminal offense, that is, an offense against the state. An individual who violates an injunction is, therefore, subject to imprisonment or fine.
Lawyers
Because law is complex and because most people are involved in legal actions only rarely, professionals are needed to study law and handle legal matters for other people. Lawyers advise individuals and organizations on the requirements of law, draft legal documents, and plead cases in court.
Another name for lawyer is attorney. Strictly speaking, an attorney is one who acts for another, an appointed agent. Someone so appointed who is not a lawyer is sometimes called an attorney-in-fact, as distinguished from an attorney-at-law.
Some lawyers maintain a general practice to assist the public in all matters of ordinary law. But many lawyers, because of the complexity of the field, become specialists in such areas as tax law, administrative law, family law, labor law, corporation law, criminal law, contract law, or other branches.
Careers in Law
Legal education varies from country to country. In England, law can be studied in college and a bachelor's degree is awarded, usually after four years. But additional training is required to become an experienced, practicing lawyer. The graduate is articled, or apprenticed, to one or more senior lawyers for at least a year before being licensed to practice as a solicitor. Solicitors may not represent clients in court; only barristers may do that. There are associations of barristers who control the admission of candidates to argue cases in the courts. This situation of having the legal profession divided into solicitors and barristers is called a split bar. Some other European countries also have a split bar. In France, for example, only a special group of lawyers avocats, meaning are licensed to argue in court.
In the United States, lawyers are required to be college graduates and to attend a law school for three years. Upon graduating from law school, the student receives the degree of Juris Doctor (doctor of law). In addition, the law school graduate must pass an examination before being admitted to the bar. (The legal profession is called the bar because, when the profession was developing in England many centuries ago, there was a fence in courtrooms separating the judges' area from the rest of the room. This fence was called the bar, and it became customary to say that a lawyer was called to the bar, meaning he was called upon to practice his profession.)
The field of law is so vast that lawyers, in addition to going into private practice or joining law firms, find employment in other ways. Some work exclusively for corporations. Others work in all branches at every level of government. Each government department usually has a full-time legal staff. A legal education is also useful in other occupations. About 10 percent of the chief executive officers of large corporations are lawyers. Most politicians and many bankers, stockbrokers, and businessmen have had a legal education.
Common Law and Civil Law
Common Law, term used to refer to the main body of English unwritten law that evolved from the 12th century onwards. The name comes from the idea that English medieval law, as administered by the courts of the realm, reflected the "common" customs of the kingdom. This system of law prevails in England and Wales and in those countries, such as Canada and the United States, that were originally colonized by English settlers.
The Legal System
The common law is based on the principle of deciding cases by reference to previous judicial decisions, rather than to written statutes drafted by legislative bodies. Common law can be contrasted to the civil law system, based on ancient Roman law, found in continental Europe and elsewhere (See Civil Law Roman Law). Whereas civil law judges resolve disputes by referring to statutory principles arrived at in advance, common law judges focus more intently on the facts of the particular case to arrive at a fair and equitable result for the litigants.
As the US Supreme Court Justice Oliver Wendell Holmes wrote in his book, The Common Law (1881): "The life of the [common] law has not been logic; it has been experience".
Civil Law, term applied to the body of private law used in those countries in which the legal system is based on ancient Roman law as modified by medieval and modern influences. Civil law is used in most nations in Europe and Latin America, as well as in some countries in Asia and Africa. The law of the United States, Canada, and a number of other nations is based on English common law, which differs from civil law in origin and other important respects.
The term civil law is also employed to distinguish those legal codes that deal with civil relationships (such as citizenship, marriage, divorce, and certain contractual arrangements) from other codes such as those dealing with criminal law and maritime law
Historical Development
The civil law originated in ancient Rome. One of the principal characteristics of Roman civilization was the development of strong legal institutions. The principles and rules of Roman law were based partly on legislation and partly on the utterances of great legal scholars who were routinely asked for their opinions by judicial officers confronting difficult legal issues in the determination of lawsuits. In the 6th century, a commission appointed by the Emperor Justinian collected and consolidated all the sources of law, including the opinions rendered by the great legal scholars during previous centuries. The result was the Corpus Juris Civilis (Body of Civil Law), also called the Justinian Code, a comprehensive code embodying the accumulated wisdom and experience of many generations of Roman jurists.
Justinian's realm was essentially limited to the eastern half of the Roman Empire; the western half had already been overrun by Germanic invaders. Thus, Justinian's Corpus Juris had no immediate effect in western Europe, where the period from the 5th to the 10th century was one of cultural decline. In the course of the intellectual reawakening that occurred in the second half of the 11th century, the Corpus Juris was rediscovered in Italy. About the same time, the study of academic law was instituted at the newly founded University of Bologna, where the law professors based their teaching on the Corpus Juris. Other European universities followed suit, and the Code became an important element in the development of Continental law until relatively modern times.
Comparison of Civil Law and Common Law
The codes of civil law and court procedures vary widely, but in general they are distinguished from common law in several significant ways. In contrast to the uninterrupted evolution of common law, the development of civil law was marked by a major break with the past, which occurred as the result of the 19th-century codification efforts. In civil law, judicial interpretations are based primarily on this system of codified written law, rather than on the rule of precedent that is emphasized in the common law. The law of evidence, so important in common-law countries, has no counterpart in the civil law.
Much more systematically than the common law, the civil law separates public and private law. In most civil-law nations, public-law disputes are determined by a hierarchy of administrative courts, which are separate from the ordinary courts that have jurisdiction over private-law disputes and criminal cases. In common-law countries, private- and public-law disputes are usually determined by the same courts.
Trial by jury, a major feature of the common-law system, is not often used in the civil law. A jury is never employed in the determination of civil procedures
The differences between civil law and common law, however, should not be overstated. Despite divergences in methods and terminology, a basic similarity is found in the ultimate results reached by both systems. The trend is towards a closer relationship between the approaches of the common law and the civil law.
Courts, branch of government established to administer the civil and criminal law. The term court is also applied to the international tribunals intended to provide for the resolution at law of controversies among governments, namely, the Permanent Court of International Justice, established by the League of Nations after World War I, and the International Court of Justice, established by the United Nations after World War II.
Courts are classified in many ways. Among the more usual general classifications are courts of record and courts not of record; courts of superior jurisdiction and courts of inferior jurisdiction; courts of first instance and appellate courts; and civil courts and criminal courts. In courts of record the proceedings are recorded completely; no detailed record is made of the proceedings in courts not of record. Courts of superior jurisdiction, often called higher courts or appellate courts, are generally those to which appeals are made from decisions of courts of inferior jurisdiction, referred to as lower courts or courts of first instance. Civil and criminal courts deal with cases arising from infractions of the civil law and the criminal law, respectively. Courts with special, limited jurisdictions are known by the names of those jurisdictions. For example, probate or surrogate's courts are tribunals dealing with the probate of wills and the disposition of estates. The judicial organs of military establishments are called military courts. They have jurisdiction over infractions by military personnel. Admiralty courts have jurisdiction over cases arising from maritime contracts and from violations of maritime law. Other courts are designated by the territorial limits of their jurisdictions.
COURTS OF JUSTICE. One of the chief purposes of government is to insure domestic tranquillity. Helping keep such promises of peace and order within nations is the primary function of every court system in every nation. The courts are the branch of government that must make decisions about problems of civil and criminal law with fairness and strength. Otherwise some people would be tempted to take the law into their own hands, creating a social atmosphere of violence and anarchy.
The word court originally meant the enclosed space in a courtyard where a king or other ruler sat to settle disputes and to decide upon punishments for crimes. Today the word has several meanings. It may mean the room where a trial is held. It may also refer to the judge, several judges sitting in a group, or the judges and other officers of the court.
There are many different types of courts and several ways of classifying them. A basic distinction must be made between trial courts and courts of appeal. Trial courts, also called of first instance, deal with the parties in conflict, hear witnesses, receive evidence, search out facts, and render a verdict, or decision.
Courts of appeal review the work of trial courts and correct their errors, if any.
Courts can also be classified by the types of cases they handle either civil or criminal. In some countries there are courts of general jurisdiction, meaning that they may deal with cases of both kinds. There are also specialized tribunals, or courts of limited jurisdiction, that deal with specific types of cases such as divorce or labor disputes. And the armed services have their own legal system and courts.
Criminal Courts
Criminal courts deal with individuals accused of crimes. The purpose of the trial, normally held before a jury, is to decide whether the accused is guilty or not and, if guilty, what the punishment should be.
Prosecution in criminal trials is undertaken on behalf of the public by a public official who is usually a lawyer, such as a district attorney or state's attorney. This is because all crimes are crimes against government in that they violate laws meant to insure domestic tranquillity. Although the courts are a branch of government, they are neutral in criminal trials between the prosecution and the defense: their objective is to decide between the two in accordance with the law and the evidence presented.
Some countries, particularly in Europe, are civil-law countries. In such nations a more active role is assigned to the judge and a more passive role to the attorneys than in the common-law nations such as Great Britain, Canada, Australia, and the United States. In common-law courts the adversarial process is used: lawyers for both sides have the responsibility of producing evidence, and they do most of the questioning of witnesses. In civil-law countries the judges do most of the questioning and bear the responsibility of discovering the facts of the case.
Civil Courts
Civil courts are not involved with offenses against government. They deal with private problems between individuals or corporations in dispute over such matters as the responsibility for an automobile accident or over the terms of a contract. Civil suits produce the most massive and rapidly growing number of cases in the court systems. Some common examples of civil cases are suits for medical malpractice or damages from libel, and those filed by relatives of disaster victims.
The public is not ordinarily involved in such proceedings because it has no interest beyond providing the rules for a decision and a fair evaluation. Civil suits are, therefore, not prosecuted by the state as are criminal cases. In a civil suit each party engages a lawyer to present the evidence and to question the witnesses.
The object of a civil action in which the defendant is judged to be wrong is not punishment or correction of the defendant but an attempt to restore the situation to what it would have been had no legal wrong been committed. The most common decision in such cases is an order to the defendant to pay money to the wronged party. Other types of rulings in civil cases include an injunction ordering the defendant not to do something or a judgment restoring property to its rightful owner.
There are occasions in which civil and criminal acts may overlap. In a hit-and-run accident, for instance, if someone is killed and the driver is found to be at fault, he may be tried by the state in a criminal case for negligent homicide. And he may also be sued for damages in a civil trial. In the United States there are two separate trials for such a case. In France and some other nations both types of responsibility civil and criminal can be determined in a single proceeding under a concept known as adhesion. This means that the injured party is allowed to make a civil claim during the criminal prosecution, agreeing to abide by its outcome. Common-law nations do not have this procedure.
Inferior Courts
In many jurisdictions there are what are called inferior courts. They handle minor civil and criminal cases. In addition, they may also deal with preliminary phases of serious criminal cases such as setting bail, advising defendants of their rights, appointing defense counsel, and conducting hearings to decide whether evidence is sufficient to justify holding defendants for trial in higher, or superior, courts.
Appellate Courts
All of the above-mentioned courts are trial courts, or courts of first instance. Above them, to review their work, are the appellate, or appeals, courts.
The responsibilities of appellate courts are normally general. Such courts handle cases in which the fairness of other courts' decisions is questioned, or appealed. An appellate court is usually presided over by several judges instead of the single judge who presides over a trial court.
After the verdict has been rendered in a trial, an appeal is not automatic. It must be sought by some party who feels wronged by the trial ruling. An exception to this practice is acquittal in a murder case. An individual who has been found not guilty of murder may not be tried again, nor may the state appeal the acquittal to a higher court.
Courts-Martial
Military law has jurisdiction over members of the armed forces. But it may also relate to civilians in some instances, including conscripts who fail to report for induction, reservists who commit offenses, and former military personnel whose offenses are committed within a specific period after their release from the service.
There is always a formal investigation before a trial conducted by a military court. This is normally conducted by a military magistrate and set in motion by a procurator, who is comparable to a prosecutor in civilian criminal trials. There is an assumption of the accused's innocence, and allowances are made for the time and facilities to prepare a defense.
Trial, legal hearing of a case in a court of law. The trial is the full hearing which decides the case, whether it is a criminal or civil matter. A similar procedure for both applies in most English-speaking countries; the emphasis is on adversarial procedures, and on oral rather than written arguments and evidence
Trial Documents
Every trial has a document (or set of documents) which gives the case its structure. Everything essential to the matter at issue should be in it, and the trial should not investigate matters which are not in it. In criminal trials the document is simple: an indictment in the Crown Court and an information in the magistrates' court. These merely describe the offence, giving as much detail as is available of where, when, and in what manner it was committed. The indictment is the more formal of the two, and everything alleged in it must be proved. If a trial proceeds on an indictment with a fundamental error it will be invalid, regardless of what is revealed in the course of the trial.
In civil actions, the set of documents is called the pleadings. The basic pleadings are a statement of claim from the plaintiff (the person who brought the action to court), and a defence from the defendant (the person against whom the action is brought). These should summarize what is in dispute between the parties.
Trial Procedure
Civil and criminal trials follow roughly the same course. One party opens the case: in criminal matters this is always the prosecution; in civil matters it is usually the plaintiff (prosecution), but if the defence is the only party seeking to prove anything, it will open. In either case it is usual for the party's lawyer to make a speech to the tribunal outlining the case. Throughout the trial, the actual parties, if legally represented, are rarely more than spectators, and the case is run by their lawyers: they will usually only speak in court as witnesses during the trial.
After the opening speech the prosecution calls witnesses, each of whom make an oath to tell the truth, or an affirmation if he or she objects to religious oaths; breach of this is the essence of the offence of perjury, of lying in court. The witness then goes through his or her evidence, in answer to questions from the prosecution, in the examination-in-chief. The prosecution may not ask leading questions, that is, questions which indicate to the witness the answer that is expected, unless the matter is not disputed between the parties, or in order to elicit a denial from the witness. Such rules are meant to ensure that the witness's evidence is not indirectly supplied by the lawyer asking the questions.
After the examination-in-chief is complete, the defence may cross-examine the witness. The cross-examiner is permitted leading questions, and they are widely used. The object of cross-examination is to test the evidence given, and an experienced practitioner seeks to do several things: to destroy or weaken the credibility of the adverse evidence and of the witness; to suggest ways in which the evidence given may be favourable to the defence; and to bring out additional evidence that is in itself favourable to the defence. The prosecution then has the opportunity to repair any damage done in reexamination, but not to produce new evidence.
When all the prosecution witnesses have given evidence the prosecution case is complete. In criminal trials the defence will often make a legal submission to the judge at this point that there is no case to answer: this is a claim that the evidence is so inadequate that the case could not possibly be proved. If the submission is successful, the case will be stopped: in a jury trial the judge will direct the jury to acquit. If it is unsuccessful, the defence puts forward its case.
The defence may make an opening speech if its case is complicated and may benefit from an outline at the start. It then calls witnesses, who are examined, cross-examined, and reexamined in the same way, except that the roles of the two sides are reversed. Often, especially in criminal trials, the defence will call no evidence, but instead try to show in the speeches that the prosecution case is not proved. It may do this even if a submission of no case to answer has already been rejected.
After the defence has had the opportunity to call witnesses, each side makes speeches to the tribunal. These summarize the evidence and attempt to present its case in the best light possible. In civil cases the prosecution usually has the last word; in criminal cases, the defendant always has the last say. When there is a jury, the judge will then sum up to them: this should mean an impartial description of the evidence they have heard, and a definitive explanation of the relevant law. In criminal cases the judge should tell the jury that the prosecution must prove its case beyond reasonable doubt: the tribunal must be sure that the defendant is guilty. Civil cases are decided on the balance of probabilities: an allegation is proved if the tribunal thinks it more likely to be true than not.
After the summing-up, the jury members retire to consider their verdict, and do not separate until they come to a conclusion or are certain that they cannot agree. Formerly, a jury's verdict had to be unanimous; in the United Kingdom in the 1960s, allegations that single members of juries had been bribed or threatened to refuse to agree to a guilty verdict led to the introduction of majority verdicts. A jury verdict by a majority of ten to two is now valid. If the jury members cannot agree, they will usually be discharged, and the case will be reheard before a new jury.
When there is no jury, the tribunal-judge or magistrates-will give its verdict (in criminal cases) or judgment (in civil cases), often after retiring for consideration for some time. In more complex civil matters, a judge may postpone giving judgment for days or weeks, and at an appointed time produce a judgment written in the interim.
In criminal trials, the judge then proceeds to sentencing, after a speech from the defence in mitigation. In civil trials the judge will make an order embodying the judgment, often asking lawyers on both sides to draft the order. Legal costs are usually awarded to the winning party, but there are penalties for unreasonable behaviour in the course of litigation. Costs are also "taxed", an assessment by a court officer, and this often means the winning party will get less in costs than is owed to his or her legal advisers.
The conclusion of a trial should be the final determination of an issue. Indeed, a defendant may not be put in double jeopardy by being tried again for the same crime. However, the losing party in all other cases may appeal to a court of appeal, which will consider the course of the trial. if the winner seeks assistance from the law in enforcing the judgment of the court in his or her favour.
JURY SYSTEM Any panel of people that judges a beauty contest, music contest, art show, or other competition may be called a jury. But the predominant use of the word is as a legal term for a panel of people sworn to try to declare a verdict in a court trial. The jury system using a jury to decide such verdicts is used in several countries. The word jury is derived from the French jurer, which means swear an oath.
History
The jury system, as it exists now, is entirely the creation of the British and American legal systems. Efforts to introduce trial by jury into the legal systems of other nations had some limited success in the 19th century. Beginning about 1850, however, juries were gradually abolished or used far less throughout Europe. In the 20th century, with the rise of fascism, Nazism, and Communism in Europe and elsewhere, jury systems were abolished outright. In the second half of the 20th century, more than 90 percent of all jury trials took place in the United States. Most of the remainder occurred in England and other nations of the Commonwealth, especially Australia and Canada.
The ancient world
Although the modern jury system originated during the late Middle Ages in England, trial by jury was one of the most prominent features of public life in ancient Athens, probably the most democratic of the Greek city-states. In Aristotle's 'Constitution of Athens', there are some striking similarities to modern processes for assembling juries. The chief difference is that all matters pertaining to a trial in Athens were in the hands of nonprofessionals. There was no judge, well trained in all aspects of law, to guide the jurors in their deliberations. All jurors were chosen by lot for a particular trial, as was the magistrate who presided over the court.
In addition, there were no trial lawyers. During a trial, any citizen could prosecute a case and the defendant had to conduct his own defense. These were truly people's courts. Every year a jury list of several thousand names was made up from the census of citizens. Juries for ordinary cases consisted of from 200 to 500 members, much larger than the 12-member trial juries that are standard today. At the famous trial of the philosopher Socrates in 399 BC, there were 501 jurors.
After evidence was presented in such trials and speeches were made by the prosecutor and the defendant, there was no jury deliberation, as there is in modern trials. Each member of the jury was given two metal tokens before the trial began. One signified guilt and the other innocence. At the end of the trial, each juror put the token representing his decision into a brass urn and threw the other into a wooden box. The tokens in the urn were counted and the verdict rendered on the basis of a majority vote. Socrates, for example, was found guilty by a majority of 60 tokens. If there was a tie vote, the defendant was declared innocent. After the trial all jurors were paid for their services.
Although this system represented an advanced form of direct democracy, it had disadvantages: There were no legal experts to state legal precedents. The juries were too large, closer to the size of legislative bodies. And verdicts could easily be based on the whims and passions of the population at a given moment, instead of being derived from the practices of settled law. This is, in fact, what happened in the trial of Socrates.
In the Roman Republic juries were used for trials in much the same manner as in Greece. But under the emperors trial by jury was abolished and ceased to exist as a factor in Western law until it emerged in England after the Norman Conquest in AD 1066. The roots of the English jury system lie in a practice established by the emperor Charlemagne in early 9th-century France. He sent groups of citizens throughout his domain to inspect the courts of justice and to ascertain the rights of the monarchy in relation to the nobility. The custom passed into Normandy, on the northwestern coast of France, and from there to England with William the Conqueror, who used it in much the same way.
Under Henry II, who ruled from 1154 to 1189, the custom of using average citizens to pass judgment in civil matters, especially in controversies over property, came into use. The use of juries in criminal cases murder, assault, treason, and others came more slowly. In 1166 Henry established the practice that 12 men be present at all county court sessions to present to the justices the names of persons suspected of crimes. This was the beginning of the grand jury the jury that indicts people, or charges them with a crime, but does not try them.
In 1367 the size of the petit, or trial jury was fixed at 12. After the 14th century unanimous verdicts (verdicts in which all jurors agree) were required by law in England until the Criminal Justice Act of 1967 introduced majority jury verdicts. In the United States today, a unanimous verdict is not always required in state courts. However, it is a requirement in the federal courts.
Selection
In the early centuries of the trial jury system there were some minimum requirements for service as a juror, such as ownership of property and clear mental competence. Women were not allowed to serve. This has changed in the 20th century. The principle of random selection from among qualified voters has come to be common in the United States, England, Canada, and Australia. In the United States, jury selection is often based on voter registration rolls. In many jurisdictions, persons engaged in certain professions lawyers, members of the clergy, physicians, and police were exempt from jury duty, but many states have changed their laws in this regard.
To be called for jury duty does not necessarily mean that one will actually serve. Before the trial begins, potential jurors are questioned by the judge and by lawyers for the defendant and the plaintiff. The law allows the lawyer to challenge jurors for cause, such as a specific bias in the case. A limited number of peremptory challenges are also allowed; these are challenges for which no cause need be stated. This screening process is called voir dire, meaning say the truth. It can become very complex and time-consuming, especially in a case that has received a great deal of publicity.
Function
During a trial, whether civil or criminal, the jury is under the supervision of the judge. It is the judge who decides what evidence the jury may hear, according to complex and established rules of evidence. If the judge decides the evidence presented leaves no matter of fact to be resolved, the judge may direct a verdict of acquittal. This effectively ends the proceedings. In a civil trial the judge may, on his or her own, find in favor of the defendant or the plaintiff. But in a criminal trial the judge may not direct a guilty verdict; this is the responsibility of the jury. The judge, in most cases, also explains the legal aspects of the evidence and the duties of the jury. If the jury's verdict is completely at odds with the weight of the evidence, the judge may set it aside. The exception to this rule is acquittal in a criminal trial: acquittal is final. Persons who are acquitted cannot be tried again for the same crime (or placed in double jeopardy).
In many jurisdictions, if a verdict of guilty is rendered by a jury, the jury must also be present for a hearing on sentencing and may be asked to decide what the sentence should be. In civil cases, the jury is asked to decide on the damages to be awarded to the plaintiff. In some jurisdictions the awarding of damages or sentencing are part of the original trial. In other places they become the subject of what is virtually a second trial. Where the death penalty is in effect and could be a sentence, a jury is required at least to express an opinion on whether it should be used.
Merits and criticisms. Along with other parts of the political structure, the jury trial system has come under a great deal of criticism for its competence and performance. It has been claimed that because juries are drawn from such a wide range of the populace, they do not have the intelligence or sophistication to deal with the complexities of law. To counter this criticism, it is argued that a jury of nonexperts brings a good deal of common sense and openness to a trial. This results in cases being decided in the spirit of the law, rather than by the rigidity of individual statutes. A jury also may provide a useful counterweight to the biases (if any) of the judge and lawyers involved in a trial. Although juries are strictly confined by law to the finding of facts, their presence frequently injects a sense of justice into the proceedings, either on the side of the defendant or the plaintiff.
CRIMINAL LAW. In all advanced legal systems treason, murder, aggravated assault, theft, robbery, burglary, arson, and rape are considered to be major offenses of criminal law. Criminal law not only determines what is criminal conduct but also regulates the methods of capturing, charging, and trying suspected criminals; imposes penalties on convicted offenders; and determines the methods by which a convicted person can challenge and seek to overturn the conviction. Criminal law is one of two main branches of what is known in Western society as positive law; the other is civil law.
Criminal Law, branch of law that defines crimes and fixes punishments for them. Also included in criminal law are rules and procedures for preventing and investigating crimes and prosecuting criminals, as well as the regulations governing the constitution of courts, the conduct of trials, the organization of police forces, and the administration of penal institutions. In general, the criminal law of most modern societies classifies crimes as offences against the safety of the society; offences against the administration of justice; offences against the public welfare; offences against property; and offences threatening the lives or safety of persons.
Criminal Conduct
A crime is defined as such by law. This first principle of legality is the keystone of criminal law. The principle directs that laws defining offenses be clear and strictly interpreted. And it forbids the application of the law retroactively, meaning a law must have been in effect at the time the act was committed.
Legal systems traditionally do not allow double jeopardy, meaning prosecuting someone more than once for the same offense. It is possible at times for an individual to be tried for essentially the same act in two different jurisdictions, or areas of authority.
All systems of law have statutes of limitation, or laws that restrict the length of time within which legal proceedings may be brought against a person. Such statutes are enacted to protect against stale claims after evidence has been lost, memories have faded, or witnesses have died or disappeared. The periods vary depending on the seriousness of the offense. In German law, for instance, the periods range from three months for petty misdemeanors to 30 years for crimes involving a life sentence. In many countries, including the United States, there is no statute of limitations for certain serious crimes such as murder.
Legal systems also define in what courts specific crimes will be prosecuted. In the United States such crimes as murder, arson, rape, burglary, robbery, and shoplifting are prosecuted in state or local courts. For a crime to be dealt with in a federal court, it must be an offense against federal law, or it must come to the federal court as the result of an appeal of a decision made in another court. Most governments claim jurisdiction over the acts of their own citizens even when these acts have occurred abroad. Therefore, most countries decline any obligation to surrender their citizens to the jurisdiction of other countries. This is called a refusal to extradite. Even within the United States one state may refuse to extradite an alleged criminal to another state for trial.
Ingredients of a Crime
It is generally agreed that the essential elements of a crime are voluntary action or failure to act and a certain state of mind. Failure to act includes not doing something an individual is required to do by law, such as file an income tax form or get a driver's license before operating an automobile.
The mental element in a crime is that the person committing it usually acts purposely, knowingly, recklessly, or negligently.
It has long been said that ignorance of the law is no excuse, and criminal-law systems generally recognize this principle. It is no defense for a person to say he was unaware that what he did was against the law. Behind this is the supposition that criminal acts may be recognized as harmful and immoral by any reasonable adult. By contrast most countries recognize that an individual who acts in ignorance of the facts of his action is not criminally responsible. Hence, someone who takes another person's goods, believing them to be his own, has not committed larceny because he lacks intent to steal. Any inconvenience he has caused the other person may, however, be a matter taken up in civil law.
It is generally recognized that persons suffering from mental defects are not responsible for their actions. Much controversy has arisen over the appropriate tests for determining responsibility in such cases. The insanity defense has come under close scrutiny in legal circles, particularly since the attempted assassination of United States President Ronald Reagan in March 1981. The individual who committed the offense was found not guilty by reason of insanity and put in a mental institution. Since that time some states have revised their insanity-plea laws to allow for verdicts of , but insane, instead of guilty on account of insanity.
The law recognizes that the use of even deadly force may be justified under some circumstances. Such special circumstances include cases of self-defense, including the use of force in defense of others, by law-enforcement agents, or in defense of property.
Law of Criminal Procedure
Once a crime has been committed, criminal law defines every phase of procedure from the investigation, through the trial, to the type and length of punishment if there is a conviction. In the investigatory phase the police play a primary role in the pretrial stage. They are responsible for the arrest of suspects, searching and investigating suspects' and victims' homes for evidence, the questioning of witnesses, and the carrying out of searches and seizures. A warrant empowers the police to arrest a suspect or to search premises and seize property to obtain evidence.
Once a suspect is in custody, charges are brought against him by a prosecuting attorney or by a grand jury (see Jury System). The suspect is normally granted a pretrial hearing before a judge, at which time the charges against him are read. At this hearing the judge determines whether there is sufficient evidence to justify further action.
All defendants have a right to legal representation from the time of their arrest. The defense lawyer takes part in all procedures from the pretrial hearing to the postconviction stage.
Private citizens have the right to bring charges against a person they think has committed a crime. This is most often done by contacting the police. There are some offenses for which there is no prosecution unless the victim decides in favor of prosecution.
Defendants in criminal trials have the right to a jury, but they can choose to be tried before a judge only. Some nations do not have the jury system; it has been almost entirely abandoned in Europe, surviving only in Austria, Belgium, Norway, and parts of Switzerland. If a defendant admits before the court to being guilty, there is no need to call a jury.
In Anglo-American law evidence is presented by both the prosecution and the defense. The function of the judge is to enforce the rules regarding evidence and to ask questions to clarify the facts. In European procedures one of the main tasks of the judge is to get evidence by questioning witnesses and experts. Defendants do not have the right to take the stand to testify in their behalf as they do in British and American trials. Instead they are questioned by the presiding judge, but they may choose to keep silent.
A basic rule of criminal law is that guilt must be established beyond a reasonable doubt. The burden of proof rests upon the prosecution. This is the basis of the often-heard person is innocent until proven guilty. American law generally requires that every person on a jury must agree on a person's innocence or guilt before they reach a verdict, but in European law a two-thirds majority of the judges is sufficient for a verdict. Once a defendant has been found guilty, the sentencing takes place at a special hearing before a judge. In crimes that can be punished by death, a jury may be asked to pass sentence or at least express an advisory opinion.
After a conviction, or verdict of guilty, the defense lawyer may ask for a new trial on the grounds that the evidence was insufficient to support the verdict, that the court was mistaken in its ruling on admission of evidence, or that new evidence has come to light. The legality of the conviction may also be challenged by an appeal to a higher court.
In the United States a case may be appealed all the way to the Supreme Court after it has been heard by lower courts of appeal. Great Britain, too, has an appeals system, proceeding from magistrates' courts all the way to the House of Lords, the supreme court of the United Kingdom. Upon appeal the original verdict may be upheld, the verdict may be set aside and a new trial ordered, or the verdict may be reversed and the defendant released.
ADMINISTRATIVE LAW The executive branches of government, from the local to the national level, are empowered to administer laws for the welfare of society. To accomplish this end, agencies, departments, bureaus, and commissions are set up as part of an executive branch. These administrative bodies are created by legislative bodies to carry out a wide variety of functions both on behalf of government and for the public. These functions include the overseeing of education, traffic control, tax collecting, defense, highway and bridge construction, quality control of consumer goods, slum clearance, and public transportation, among others.
Administrative bodies are empowered by legislatures with the authority to do their work. Their power may be allocated in two ways: specific statutory directions that tell an agency exactly how it shall operate, or discretionary authorization that allows an agency to devise its own regulations.
In many cases, it is a mixture of the two. The term administrative law has come to mean both the regulations that govern the internal operation of an agency or department and the procedures it may use in the performance of its tasks.
The powers that agencies have are called delegated powers; they do not originate in the constitution of a nation as do the powers of the legislature, the courts, and the executive branch. Because the powers are delegated, or granted, they must be subject to some check by a higher authority so that agencies do not exercise their power in a way that would be detrimental to the public good. The process by which the activities of agencies are checked and controlled by the courts is called judicial review.
Judicial review inquires into the legal competence of public agencies, the validity of their regulations, and the fairness and adequacy of their procedures. If, for instance, a government department decided to build a new highway through a city, citizens could sue the government to stop the project until all environmental issues had been considered. A court or tribunal would then have the task of deciding the validity of the case.
In the United States the court systems exercise the power of judicial review, and they have far-reaching authority in doing so. In the 20th century much of the adjudication of disputes was also done by tribunals, federal agencies with a large measure of independence from the executive branch. Among these agencies are the Securities and Exchange Commission, the Interstate Commerce Commission, the National Labor Relations Board, and the Civil Aeronautics Board.
Other countries have different systems of judicial review. In Great Britain special tribunals ensure that public agencies carry out the intentions of Parliament. In France the courts are forbidden to oversee public agencies; the job is done by a Council of State. The French system has been adopted by other nations, including Belgium, Italy, Portugal, Spain, Greece, Egypt, and Turkey. Germany has an administrative court system and a Federal Administrative Court that acts as a court of appeals.
In the former Soviet Union and other Communist nations there was no clear definition of the powers of public agencies. Each agency was assumed to have unlimited power to run its own affairs, subject to the power of higher agencies or organs of government. There was in the former Soviet system an institution called the Procuracy that regulated all administration, but it did not have the power of a court and could not make binding decisions. In addition, the work of the procurators was entirely subject to the authority of the Supreme Soviet.
Administrative law is the legal framework within which public administration is carried out. It derives from the need to create and develop a system of public
administration under law, a concept that may be compared with the much older notion of justice under law. Since administration involves the exercise of power by
the executive arm of government, administrative law is of constitutional and political, as well as juridical, importance.
There is no universally accepted definition of administrative law, but rationally it may be held to cover the organization, powers, duties, and functions of public
authorities of all kinds engaged in administration; their relations with one another and with citizens and nongovernmental bodies; legal methods of controlling public
administration; and the rights and liabilities of officials. Administrative law is to a large extent complemented by constitutional law, and the line between them
is hard to draw. The organization of a national legislature, the structure of the courts, the characteristics of a cabinet, and the role of the head of state are generally
regarded as matters of constitutional law, whereas the substantive and procedural provisions relating to central and local governments and judicial review of
administration are reckoned matters of administrative law. But some matters, such as the responsibility of ministers, cannot be exclusively assigned to either
administrative or constitutional law. Some French and American jurists regard administrative law as including parts of constitutional law.
The law relating to public health, education, housing, and other public services could logically be regarded as part of the corpus of administrative law; but because of its sheer bulk it is usually considered ancillary.
because of its sheer bulk it is usually considered ancillary.
Administrative Law, branch of law concerned with the regulation of governmental power. It is intrinsically related to the constitutional framework and political theory from which it has developed. Principal objectives of administrative law include the accountability of governmental power and the resolution of grievances of those affected by administrative decision-making. Whilst some commentators would stress the issue of control of administrative action, others are interested in the way the administrative legal system can improve the effectiveness of administrative action. Administrative law is concerned with all relevant institutional arrangements that regulate public decision-making. The role of some of the most important of these institutions is considered below.
CONSTITUTIONAL LAW. A constitution contains the basic rules and principles by which a state or nation is governed. Constitutional law is the combined record of all the ways in which the constitution has been used to enforce laws and to deal with institutions and problems arising within a nation. In effect, constitutional law attempts to answer the question: What is the proper interpretation of a constitution in reference to a specific law or to a specific action of government?
The means by which a law or an action of government is declared constitutional, and therefore allowable, or unconstitutional, and therefore forbidden, vary from country to country. Two of the most notable mechanisms by which these decisions are made are found in Great Britain and the United States, and each is quite different from the other.
British System
It has often been said that in the United States the Constitution is what the Supreme Court says it is. In Great Britain, however, the Constitution is what Parliament says it is. The British Constitution is not a single document as is the case in the United States. It comprises, rather, a series of Parliamentary acts, including the Bill of Rights, which became law in 1689, the Act of Settlement (1700-01), the Parliament Act (1911), various Representation of the People acts that extended voting rights, laws dealing with the structure of the court system, various local government acts, and many others. Because the British Constitution is, in a real sense, a product of Parliament, it can be amended by Parliament through the passage of ordinary laws. It is theoretically possible though highly unlikely that Parliament could by a simple law abolish freedom of the press or the right to trial by jury. If Parliament took such actions, there is no authority, including the courts, empowered to declare them unconstitutional. In terms of constitutional law, Parliament is the court of last resort.
American System
The United States Constitution was produced at the Constitutional Convention held at Philadelphia in the summer of 1787. At the time the issue of whether the proposed Supreme Court should be allowed to deal with whether laws were or were not constitutional came up. There was a general sentiment against it and the Constitution, as finally written, included no specific means by which the constitutionality of laws or actions of government should be decided. It was apparently felt that the separation of the powers of federal government would be sufficient to guard against abuses of power by any one of its branches the executive, legislative, and judicial.
INTERNATIONAL LAW
The body of rules and customs by which sovereign states are guided in their relations with each other is called international law. It is based only on mutual consent of sovereign states, and it is effective either because the nations of the world recognize that it is to their best interests to accept it. International law is the law of the international community.
Ancient History
The need for some principles and rules of conduct between independent states arises whenever such states enter into mutual relations. Rules governing the treatment of foreign traders, travellers, and ambassadors, as well as the conclusion and observance of treaties, developed early in human history. The oldest known treaty, preserved in an inscription on a stone monument, is a peace treaty between two Sumerian city-states, dating from about 3100 BC. A considerable number of treaties concluded by the empires of the ancient Middle East during the 2nd millennium BC show rudimentary notions of international law. In later antiquity the Jews, Greeks, and Romans developed tenets of international law. Jewish law as set forth in the Book of Deuteronomy contains prescriptions for the mitigation of warfare, notably rules against the killing of women and children. The Greek city-states created an elaborate treaty system governing a multitude of aspects of the relations among themselves. The conduct of the Olympic Games and the protection of religious sanctuaries, such as the Temple of Delphi, were among the subjects of some of these inter-Greek treaties.
Even more than other ancient societies, the Romans made significant contributions to the evolution of international law. They developed the idea of a jus gentium, a body of laws designed to govern the treatment of aliens subject to Roman rule, and the relations between Roman citizens and aliens. They were the first people to recognize in principle the duty of a nation to refrain from engaging in warfare without a just cause and to originate the idea of a just war.
The Modern System
Modern international law emerged as a result of the acceptance of the idea of the sovereign state, and was stimulated by the interest in Roman law in the 16th century. Building largely on the work of previous legal writers, especially Spanish precursors, the Dutch jurist Hugo Grotius, sometimes called the father of modern international law, published his celebrated treatise De Jure Belli ac Pacis (On the Laws of War and Peace) in 1625. Grotius based his system on the laws of nature and propounded the view that the already-existing customs governing the relation between nations had the force of law and were binding unless contrary to natural justice. His influence on the conduct of international affairs and the settlement of wars was great. His ideas became the cornerstone of the international system as established by the treaty on the Peace of Westphalia (1648), which ended the Thirty Years' War
International law stems from three main sources: treaties and international conventions, customs and customary usage, and the generally accepted principles of law and equity. Judicial decisions rendered by international tribunals and domestic courts are important elements of the law-making process of the international community. Nowadays, United Nations (UN) resolutions may also have a great impact on the growth of the so-called customary international law that is synonymous with general principles of international law.
The present system of international law is based on the sovereign state concept. It is within the discretion of each state, therefore, to participate in the negotiation of, or to sign or ratify, any international treaty.
Since the beginning of the 19th century, international conferences have played an important part in the development of the international system and the law. Noteworthy in that respect was the Congress of Vienna which, through its Final Act of 1815, reorganized Europe after the defeat of Napoleon and also contributed to the body of international law. For example, it established rules for diplomatic procedure and the treatment of diplomatic envoys. On the urging of the United Kingdom, it included a general condemnation of the slave trade. Another important step in the development of international law was the Conference of Paris (1856).
At the end of World War I the League of Nations was established by the covenant signed in 1919 as part of the Treaty of Versailles. In accordance with provisions in this covenant, the Permanent Court of International Justice was established in 1921. The League of Nations was created as a permanent organization of independent states for the purpose of maintaining peace and preventing war. During its existence, 63 countries were members of the League at one time or another. The USSR joined in 1934, but Germany and Japan withdrew in 1933. The United States never became a member of the organization, which was powerless to forestall World War II.
After the termination of World War II in 1945 the UN Charter created a new organization with an elaborate machinery for solving disputes among nations and for the further development of international law.
Normally, every nation is expected to obey international law.
If each nation were free to declare unilaterally that it is no longer bound by international law, the result would be anarchy. A test was provided in the conduct of Germany under Nazi rule. The Nuremberg tribunals held that German government regulations that ordered, for example, the killing of prisoners of war in contravention of the generally valid rules of warfare, were null and void and that the persons responsible for issuing and executing such orders were criminally responsible for violations of international law.
Impact of the UN on International Law
The United Nations is one of the primary mechanisms that articulate and create international law. The General Assembly and other agencies of the UN bring a combination of diplomacy, negotiation, and propaganda to bear on world affairs in ways that produce effective international treaties and affect world opinion. Certain courts also have indirect impact, including the International Court of Justice. Domestic courts in various nations at times also engage in the articulation of international law.
The UN began its life with a membership of 50 nations. In the 1990s, because of the growth of newly independent nations, that number had reached 180. The aims and purposes of the organization encompass the maintenance of peace and security and the suppression of acts of aggression. The Charter also expressly includes among its objectives the maintenance of respect for the obligations arising from treaties and other sources of international law. For that reason the Charter established the International Court of Justice as one of the principal UN organs, and specifically charged the General Assembly with the progressive development and codification of international law. states. Upon acceptance by the General Assembly, these drafts are submitted to international conferences called together by the UN for the negotiation of the respective conventions.
Human Rights
Since World War II international law has become increasingly concerned with the protection of human rights. It has provided improved procedures for that purpose within the UN. This new emphasis has also been manifested in the adoption by the UN of the Universal Declaration of Human Rights
Contract, in law, an agreement that creates an obligation binding upon the parties involved. The essentials of a contract are as follows: mutual assent; a legal consideration, which in most instances need not be money-related; the parties having legal capacity to make a contract; absence of fraud or duress; and a subject matter that is not illegal or against public policy.
In general, contracts may be either oral or written. Certain classes of contracts, however, in order to be enforceable, must be written and signed. These include contracts involving the sale and transfer of real estate, and contracts to guarantee or answer for the miscarriage, debt, or default of another person.
CONTRACT. Most simply, a contract is a promise that is enforceable by law. Because it is enforceable, there have arisen in Great Britain, continental Europe, the United States, and numerous other areas complex bodies of contract law to clarify the nature of contracts and the problems associated with their enforcement. A contract is said to exist when an offer is made and then accepted. All contracts must be entered into both willingly and freely, and an offer generally cannot be rejected once it has been accepted.
During the years when a few studios such as Metro-Goldwyn-Mayer, Paramount, and Warner Brothers dominated the motion picture industry, they kept many actors and actresses contract. This meant that these performers could make movies only for their respective studios unless they were expressly freed from this obligation and allowed to work for someone else. Today the whole entertainment industry operates on the basis of short-term contracts. Entertainers perform a service as described in a contract, and they are paid for that service by those with whom the agreement was made. The professional sports industry baseball, football, basketball, hockey, and others also operates under a system of contracts in which a service is performed by one individual a quarterback, for instance and he is paid by the team owners.
Kinds of Contracts
Most contracts involve business dealings. In fact, the modern use of contracts originated during the late Middle Ages among merchants. One of the most common types of contract is a loan agreement. When people borrow money, they sign a contract to repay it with interest over a specific number of months or years. Usually the borrower puts up some kind of collateral to secure the loan: a pledge to repay the loan or lose the collateral. The collateral is something of equal or greater value than the amount borrowed. If the loan is for a new automobile, for example, the seller may take back the automobile if the loan is not repaid on time. When a home is purchased, it itself becomes the collateral for the long-term loan, or mortgage. Loans in amounts equal to the full value of the collateral are rare.
Sales contracts are also common. The person who buys a car, in addition to signing a loan agreement, which is a contract, obtains from the seller a warranty, which is also a contract. The warranty guarantees that if there is a mechanical failure resulting from faulty manufacture, the seller will repair the car at no cost to the buyer. Warranties have time limits written into them.
Sellers of major appliances such as refrigerators, air conditioners, and television sets often offer extended warranties. This is a renewable contract for which the buyer pays a fee each year. In return, if the appliance breaks down, the seller will repair it at no additional cost. Some of these contracts may be renewed indefinitely. Another common kind of contract is the agreement negotiated between labor unions and corporations. These contracts contain all the points at issue between a union and an employer: wages, benefits, cost-of-living adjustments, overtime rules, seniority policy, working conditions, and more. Labor contracts normally extend over short lengths of time such as one, two, or three years. After they expire, they must be renegotiated in the process called collective bargaining.
Perhaps the most common of all contracts is the institution of marriage. Although all the obligations that are involved are not specifically set out in the wedding ceremony itself, they are part of the law of every nation. Hence, when a marriage is dissolved, the divorce is essentially the canceling of a contract (see Family Law).
Standards
Theoretically each person who is named in a contract is considered equal, and each is believed to have a full understanding of the obligations undertaken. In fact, however, the two parties to a contract are quite often unequal in their understanding of what is involved and in their abilities to fulfill their obligations. Many people have signed sales contracts that they later regret, or they find that they are unable to pay what they owe.
Much of the law of contracts is, therefore, concerned with ensuring that contracts are understood by and truly agreeable to those entering into them. Provisions that aid in this goal include rules that void contracts made under pressure or that prove to be extraordinary bargains for one party. In many places there are laws that allow an off period after the signing of a contract to allow the parties to decide whether or not they want to change their minds. This applies specifically to sales contracts. Minors and incompetents are also protected from the fulfillment of contracts, and in many places they are not permitted to enter into them.
Some types of written agreements are illegal. In the United States, for example, a contract between two or more corporations that is intended to fix prices or to restrain trade is against the law. Other contracts, such as an agreement to commit a civil wrong, are held by the courts to be contrary to the public interest.
Under law, contract rights are a type of property. As such they may be sold or otherwise transferred from one person or institution to another. A sales contract, for instance, may be turned over to a bank or loan company by the seller. The buyer then makes payments, including interest, to the financial institution instead of to the seller. Contracts for service are also transferable unless there are provisions that prevent their being assigned to another.
In some places a person for whose benefit a contract is made has rights under it though not a party to it. If, for example, a man promises a woman that he will make provision for her children in his will if she marries him but he does not do so and dies the children may recover funds from his estate as legal beneficiaries.
Nullifying Contracts
The contract of a person mentally impaired, or a person so under the influence of narcotics or alcohol as to be incapable of a free exercise of will is sometimes said to be wholly void. In recent cases, however, such contracts have usually been regarded as merely voidable; and in some instances they are enforced if the other contracting party is unaware of the incompetency and the terms are fair. The contract of a minor, usually a person under the age of 18, is not void, but voidable, and it may be affirmed by that person on attainment of full age.
Breach of Contract
In case of a breach of contract the injured party may go to court to sue for money damages, or for the contract to be rescinded, for injunction, or for specific performance if money damages would not compensate for the breach. Specific performance of a contract is the right by one contracting party to have the other contracting party perform the contract according to the precise terms agreed therein.
PROPERTY. Derived from the Latin proprius, meaning 's own, refers to anything owned by an individual, an institution, or the state. It also refers to the legal relationships established by government to regulate ownership, because rights to property are rights that are based on custom or on law.
History
The concept of property originated in ancient times. Societies apparently held most property rights-such as the right to hunt or fish in a given area-in common. Although some private ownership of personal property, such as weapons and cooking utensils, existed, real property seems to have been publicly owned. Land was not privately owned until the end of the Middle Ages. Under feudalism, land could be held, not owned, and such holdings involved numerous obligations. In the modern sense of ownership, only the monarch and the church owned land.
Types of Property
Historically all property is seen from two different perspectives. From one point of view it is either tangible or intangible; from the other it is either real or personal.
Real property, according to English legal tradition, is the land and anything firmly attached to it, such as buildings and the permanent fixtures of those buildings, and the minerals beneath the surface of the land.
Personal property is anything that can be owned other than real property. Personal property can be divided into tangible and intangible property.
Tangible and intangible property
Tangible property consists of all visible, material property such as houses, automobiles, books, and clothing.
Intangible property refers mainly to certain rights of ownership. Common stock, for example, represents ownership in a corporation. The stock certificate itself is tangible, but it is not the ownership it only signifies ownership.
Other forms of intangible ownership are copyrights, patents, and trademarks. An author who copyrights a novel has established an ownership right to a work. That novel may not be legally copied by someone else and published. A patent represents ownership of an invention, and a trademark is a brand name or some other identifying sign owned by a company and used on its products (see Copyright; Patent; Trademark).
Mineral rights, water rights, and rights-of-way are other forms of intangible property. The grant to someone else of a right to use part of one's land for a specific purpose is called an easement. If someone owns land, the mineral rights to what is under the land may be sold to someone else. In exchange for the rights, there may be a demand for a certain profit if petroleum or some other mineral is discovered and extracted. But the ownership rights to the minerals belong to the person who has bought them.
Sometimes an easement can be created by long and continuous use of another's property. For example, if a farmer allows a road to run through a piece of land over a period of years, an easement has been created knowingly or not. This right-of-way cannot be blocked by the property owner without going through legal formalities.
A novel view of intangible property was presented by James Madison, fourth president of the United States, in an article published in 1792. He declared that a man is said to have a right to his property, he may be equally said to have a property in his rights. Among these rights he included freedom of thought, freedom of speech, and freedom of religion. He further stated that is the most sacred of all property and that it is the purpose of government to safeguard these rights.
Real and personal property
From another perspective property is also of two kinds. In some legal systems the terms immovables and movables are used. In common-law nations including Great Britain, most Commonwealth countries, and the United States the terms are real property and personal property.
Real property consists basically of land and buildings.
Personal property includes everything an individual owns apart from real estate such as furniture, appliances, clothing, jewelry, automobiles, books, stocks, and patents.
Private property
In its most general sense, private property means property that is owned by an individual or institution. This is in contrast to public property, property owned by the state. A family home and the land on which it stands are private property. No one outside the family has a right to occupy or use them.
During the 19th century private property gained a specific economic definition. It came to refer to what is also called productive property, the means of production. Agricultural land and manufacturing facilities are the chief means of production.
Ownership.
Ownership in modern societies implies the right to use, prevent others from using, and dispose of property, and it implies the protection of such rights by the government.
Property can be owned by individuals, families, collectives or cooperatives, corporations, states, and state enterprises. There is also a form of ownership that is management of property for the benefit of others.
Ownership and possession are not necessarily identical. An apartment or office building may have many tenants, none of whom owns the property. Each tenant has possession and use, for which a monthly rent is paid, but ownership is vested in someone else. Such possession without ownership is called a leasehold interest. The tenant signs a document called a lease that is valid for a specified amount of time, usually a year or more.
Individual ownership of property has existed in all societies even the most ancient. In early preagricultural tribal societies, some forms of property were owned by the whole tribe. This was true of domesticated animals, hunting grounds, fishing vessels, and some buildings. But personal ownership of weapons, clothing, ornaments, and implements was common.
As society became agricultural there appeared well-defined rights to land. Sometimes its ownership was vested in a family, clan, or community. But as city-states emerged, individual rights to land became normal. In ancient Greece and Rome the individual's exclusive right to own land was dominant.
At the end of the Roman Empire, individual ownership of land gradually gave way to the system known as feudalism. This was an arrangement of mutual dependence and responsibility among all members of society. Landlords kings, nobles, and churchmen retained ownership, but land was possessed mostly by tenant farmers and craftsmen. In time tenants gained the right to hold the land from one generation to the next, but they still did not own it. As feudalism died out, the system of permanent land tenure (landholding by one family) died out. It persisted in France, however, until the French Revolution of 1789.
Family ownership is more common in India than anywhere else today. The term refers to an extended family parents, children, grandparents, aunts, uncles, and cousins. The property, normally real estate, is owned by the whole family. There is therefore no problem of inheritance when the oldest family member dies. The head of the family acts as manager rather than owner. Actions regarding the property may be overruled by the rest of the family. The purpose of family ownership is to assure a means of living for all members: everyone has a place to live, food, and clothing; children are educated; daughters are given a dowry when they marry.
Family ownership does not rule out individual ownership. An individual's clothing and such other small items belong to that person. Some members may gain more personal property through earnings.
Collectives and cooperatives consist mainly of agricultural or small manufacturing communities. In the Soviet Union before 1991, for example, the chief kind of cooperative was the kolkhoz, or farm. The workers on these farms had the right of perpetual possession and use of the land. All production, however, was done for the state.
The well-known collectives of Israel are called kibbutzim (singular, kibbutz), the first of which opened in 1910. They are either owned or leased, and their members manage them. All profits are reinvested after their members have received their basic needs and medical and social services.
During the 19th century many cooperative communities were established in the United States. Many of them were founded by religious groups such as the Amana Colony in Iowa.
Corporations are defined as legal persons and may therefore own property. Under ancient Roman law the rights of ownership could only be vested in what are called legal persons. This term includes human beings, legally established associations of persons, foundations, and in the modern era corporations.
Corporations are regarded in law as legal persons that exist for economic or social purposes. This means that corporations themselves are not really owned as property. A stockholder's share in a corporation represents a small control of the property owned by the corporation. In all cases the property of the individual shareholder is entirely separate from the property of the corporation. Therefore if the corporation goes bankrupt, the shareholder's investment is lost; but his own property cannot be taken by creditors to satisfy the corporation's debts.
Corporations may own the same kinds of property as individuals. These can include land, buildings, machinery, vehicles, furnishings, patents, copyrights, stock in other corporations, and bank accounts.
States may own property in two ways directly or through their agencies. The federal government of the United States has vast landholdings in many states, especially in the Far West. It also controls natural waterways, national parks, and monuments. Through the Defense Department it owns shipyards, military training camps, schools, bases, stores, and other real estate. In socialist nations, land, industrial capital, and many services are state owned and operated.
Limitations on Ownership
Antarctica is the only continent that has no government and therefore no state ownership of land. On all other continents all land, regardless of legal ownership, basically belongs to the state and can be appropriated by it at any time if wanted. Personal ownership of property nevertheless coexists easily with the rights of the state in democratic societies. There are other, more significant, limits on what may be owned and on the uses of property.
In all modern legal systems, apart from a few isolated occurrences, the ownership of human beings has been abolished. People are considered to have ownership rights of their own bodies. Private ownership of a dead body by relatives of a deceased is admitted, but regulations normally require disposal of corpses through burial or cremation. In addition to human beings, there are parts of the natural world over which ownership cannot be asserted. These include sunlight, air, running waters, and the open seas.
In most legal systems there are restrictions on the use of property. In populated areas there are zoning laws to regulate the types of buildings that may be erected. Some parts of cities, for instance, are zoned for residences only; other parts are zoned for small businesses. Zoning restrictions may place height limitations on buildings or curtail the use of some kinds of signs. Environmental regulations may limit noise, smoke emission, and odors from industrial sections.
The state, in addition to ownership of land, normally asserts ownership of the continental shelf (where applicable) and inland navigable waters. The state also controls minerals under its land and trees growing on it. All such properties, however, may be leased to private individuals and companies. Mineral rights and grazing rights are frequently sold or rented by the federal government. Animals that have been designated endangered species may be considered as owned by the state.
Governments have the power of eminent domain. This means that they can take private property for public use without consent of the owners. When the interstate highway system was being built in the United States, it was necessary for the government to condemn and expropriate a great deal of farmland and parts of cities to make room for highway segments.
Compensation is usually given for real estate taken under eminent domain, but it is not required in all nations. In France and Germany the law requires that compensation be paid before property is taken.
Acquisition and Transfer of Property
Legal systems differentiate between the original acquisition of property and the transfer of ownership. The latter is also called derivative ownership.
Original acquisition creates a new property right. If someone finds money while taking a walk, it belongs to the finder. Former ownership of the money has ceased and a new ownership begun. Occupancy of unowned or unclaimed property has long been recognized as legal. Sometimes unclaimed property, such as an old and unused bank account, reverts to the state if no one steps forward to claim it.
During the earliest years of colonization, vast tracts of land in North America were taken by right of occupancy. The land was not viewed as belonging to anyone, though in some cases Indians were paid for it. The Indians, however, did not look upon themselves as property owners in a modern sense. Today the right of occupancy has narrowed considerably because most land in the world is claimed by someone or by governments, if no one else. Thus original acquisition of unused land is subject to license, grant, or sale by the state.
The right of accession has also been recognized as a means of acquiring property. If someone buys 1,000 acres of land, all the minerals under it and all that grows on it are acquired by accession. If someone else, not realizing the land is owned, builds a structure on it, that structure becomes the property of the landowner by accession.
The law also allows ownership to become effective if someone has possessed a property over a period of time and no claim has been made upon it. A family, for example, buys a new home. After moving into the house they discover a trunk full of valuable securities in the attic. They report the find to the authorities, but no one comes forward to claim it. After a stipulated amount of time, the trunk and its contents legally belong to the family.
Original acquisition of property can also occur through government action. The granting of trademarks, patents, and copyrights is an example. The granting of the use of the air waves to a radio station also represents original acquisition, though the air waves are considered owned by the public.
Transfer of property can be done in several ways. The simplest is through sale, which is how most people acquire their possessions. This involves transfer of ownership for an amount of money. The transaction can be as simple as buying a candy bar in a grocery store or as complicated as buying real estate. All such transfers are called exchanges. In some cases it is an easy exchange of money for a product. In other cases such as buying an automobile or a home there are more intricate legal formalities.
Candy bars do not require proof of ownership. Owners of automobiles and houses, however, are required to possess evidence of ownership in a document called a title. When the property is transferred, the title is transferred with it. The title may be held by a financial institution while the new owner is paying for the property over a period of time.
Another means of transferring property is by giving it away. Gifts may be made while the giver and receiver are both living, or they may be made through a will as part of an estate. Giving money or other property to such nonprofit institutions as colleges is often done in order to avoid paying taxes on it.
Property may be acquired through judicial sale. This term applies to cases of property being sold because the original owner can no longer afford to keep it. If taxes have not been paid on a house, for instance, the building may be seized by the government and sold to recover the amount owed. Sometimes inherited property must be sold to pay estate taxes. The means of selling is usually by auction.
A common way for property to be acquired is as part of the estate of someone who has died. Such property is often passed on by means of a legal document called a will or testament (see Will). Provisions of a will state the wishes of the deceased regarding the disposition of property after death. If there are no legal obstacles, the provisions of the will are carried out subject to inheritance taxes.
It is possible that legal obstacles may arise to nullify the provisions of a will. If a man has made a will disinheriting his wife, for example, state laws of descent nullify the will. In the United States the widow is granted at least a portion of the estate regardless of the will.
If a will grants the proceeds from insurance policies to an individual, that person must be named as beneficiary in the policies. If not, the provisions of the will are void, and the proceeds go to the named beneficiaries. An insurance policy is a legal contract, and its obligations cannot be impaired by a will or a third party.
Joint tenancy poses another problem for the legality of wills. If a husband and wife hold their home in joint ownership and one of them dies, the home becomes the property of the surviving spouse. If a will exists leaving one partner's share to a child, that provision is voided by the legal rights of joint tenancy. Provisions of a will may also be nullified if property is held in a trust. The provisions of the trust instrument prevail over anything stated in a will contrary to them.
Real estate transfers are among the most complex ways of exchanging property. At the heart of the transfer is a document called the mortgage. The seller is a party only to the extent that the sale is completed. If a financial institution such as a bank or savings and loan association agrees that the buyer is a good risk, a long-term loan is granted to the buyer. It is at this point that the seller steps out of the picture. The seller is paid, and the mortgage becomes an arrangement between the financial institution (called the creditor because it is making credit available) and the buyer (called the debtor because money will be owed). Title to the property remains in the hands of the creditor until the full debt purchase price plus interest and other expenses is paid. Nevertheless, the buyer (mortgagor) is regarded as the owner as well as possessor of the home. If the mortgagor cannot pay, the creditor claims the property by a procedure called foreclosure.
The use of mortgages, despite their intricacies, greatly simplifies the transfer of real estate. The original owner is free of any involvement in the transfer once the loan has been approved. The buyer may sell at any time during the terms of the loan. In the sale process, however, the selling price must be enough to cover the remainder of the debt.
The term equity is used in relation to real estate ownership. It means the money value an owner possesses in a property in relation to the debt still owed. The earliest payments on a mortgage loan consist almost entirely of interest. Gradually the buyer begins to pay more of the principal the actual purchase price. The greater the amount of the principal paid, the greater the owner's equity.
Equity is significant for owners of real estate. It is an amount that can serve as collateral for other loans. It also is considered in the disposition of an estate. If an owner of real estate dies without equity in a property, the estate cannot pass to the heirs. It must be sold to cover outstanding debt.
Controversy over Ownership
Despite the long history of the rights of property ownership, there has been a great deal of disagreement over such rights. This controversy is at the heart of the disagreement between socialists and capitalists on the way economies should function. At one extreme is the French socialist Pierre-Joseph Proudhon, who said: is theft. At the other is James Madison's assertion: personal right to acquire property . . . is a natural right.
INSURANCE Insurance may be considered a game of risk in which individuals and businesses protect themselves, their families, and their property from possible losses resulting from unpredictable events such as storms, fires, accidents, and illnesses. The first rule of the game, devised centuries ago, is the risk. To play by this rule, many people take a small loss in place of one person's taking a large one.
It is a simple idea: An individual pays a small amount of money called a premium to an agent who acts on behalf of an insurance company, or underwriter, which holds the individual's premium and the premiums paid by thousands of others. The individual receives an insurance policy, a promise that if there is a loss to the individual as defined in the policy the insurance company will pay for it. The funds will come from the individual's premium, the premiums paid by others who did not have losses, and money from the company's investment of all the premiums. An individual who does not have a loss loses the premium money but purchases what insurance underwriters call of mind. It is a gamble for both the customer and the underwriter, but it is built on the first rule of risk: that losses are small when shared by many.
HISTORY
The first known records of insurance date from several thousand years before the Christian Era. Chinese merchants devised a system for protecting themselves from losses of ship cargo resulting from storms, pirates, or anything else that could go wrong at sea. They spread their cargo among several ships, believing that whatever could sink or destroy one ship on one day would probably not destroy a whole fleet sailing on several days.
In the 1600s British merchants and shipowners began meeting at a coffeehouse named Lloyd's near the London docks. There they made agreements to share the profits of a voyage as well as possible losses. Some individuals were more willing than others to risk possibly hazardous trading voyages. They would underwrite such trips and became known as underwriters. These individuals were the forerunners of the famous international insurance association, Lloyd's of London, whose underwriters will insure almost anything from the legs of movie stars to the successful launch of a communications satellite.
Although the first insurance was devised for ship's cargo, merchants began to band together to share other kinds of risk, including that of fire. The first real insurance company was founded in 1667, the year after the Great Fire of London destroyed some 13,000 homes and left 100,000 people homeless.
In the New World the first insurance company was founded by an association of storeowners in 1735 to share the risk of fire's destroying their wooden buildings. It lasted only five years. Benjamin Franklin founded the Philadelphia Contributionship for the Insurance of Houses from Loss by Fire in 1752. As these companies grew both in finances and in their understanding of risk sharing, they began to offer more kinds of insurance to more areas of the country. Since underwriters could not travel around the country on horseback to meet with all the people who might be interested in buying insurance, they began appointing agents to offer insurance and accept premium contributions on their behalf. This was the birth of the insurance agency system by which most people in the United States buy their insurance.
TYPES
Insurance comes in many varieties. Categories include property, liability, homeowners', automobile, medical, life, workers' compensation, and marine.
Property Insurance
Property insurance is the modern form of the fire insurance that was sold by early insurance companies. The name has changed because the coverage has changed. No longer are just the losses resulting from fire protected by property insurance. Such losses as those from windstorm, theft, vandalism, and water damage are also covered.
Usually property insurance policies are, as insurance underwriters say, for a specific value such as the cost of replacing a building or its value if sold on the open market. The premium is based on the insurable value.
While early insurers offered nothing more than a promise to pay for losses, modern insurance companies offer such additional services as safety and fire protection engineers to inspect buildings and to make recommendations for added safety. Suggestions might include such improvements as sprinkler systems and fire doors. Fire-resistant buildings built of materials like brick or concrete and steel are offered lower insurance premiums.
Liability Insurance
Liability insurance is the most important kind of business insurance. A liability is a duty one person owes another, or is liable for, for some special reason. Liability insurance pays an individual or a business for liabilities that result from unforeseen situations. Personal liability insurance, for example, indemnifies, or pays, attorneys' fees and other losses that occur when another person is injured on an individual's property and files a lawsuit seeking damages, or payment. Business liability insurance is almost always sold separately and comes in many forms, including comprehensive general liability, which protects a business from a wide variety of liability losses; professional or malpractice liability insurance, which protects physicians, lawyers, and other professionals from liabilities resulting from professional mistakes; and product liability insurance, which protects manufacturers from any liabilities caused by their products.
Homeowners' Insurance
Homeowners' insurance is a combination offering both property and liability coverage. Usually it includes protection for a person's home, any other buildings on the property, and for the buildings' contents and personal belongings except automobiles and pets.
Homeowners' policies include two kinds of liability insurance. General liability coverage, as discussed above, protects homeowners from losses from lawsuits. Medical payment coverage pays for medical treatment of people injured on the insured property.
Although homeowners' insurance generally does not cover such perils as flood, earthquake, or volcanic eruption, the added coverage is sometimes available in areas where it is needed and can be added for an additional premium. Homeowners' insurance is not restricted to homeowners but is available in a modified form to people who rent living quarters.
Automobile Insurance
Automobile insurance is the most complicated kind of insurance purchased by individuals. It combines several kinds of property and liability coverage. The standard automobile policy includes collision insurance, covering property damage to a car when it is struck by another vehicle, and comprehensive insurance, covering general property damage that occurs when an automobile is damaged by something other than another vehicle. In other words, a dented fender resulting from another automobile's backing into it is insured with collision coverage, while the windshield broken by a poorly thrown baseball is covered under comprehensive insurance.
Automobile insurance also includes a variety of liability coverages, including general liability called bodily injury liability coverage and medical payment insurance. The automobile policy, however, covers liabilities that occur when an uninsured motorist is involved in an accident with an insured driver and creates liabilities for both. Property damage liability insurance pays for damage to other people's property caused by the insured automobile. For example, damage caused by backing a car into a neighbor's garage is paid for by such a policy.
Automobile insurance underwriters charge premiums based on classes of drivers and their safety records. Generally drivers who have had accidents pay more for automobile insurance than do drivers who have had none. Charging by classes of drivers may seem unfair to the individual. For example, a young driver, even with a good safety record, pays a higher premium than a comparable older driver because younger drivers as a class have poorer safety records. According to insurance records, the worst drivers and thus the most expensive drivers to insure are unmarried males between the ages of 15 and 25. Companies generally offer premium discounts for good students, drivers who have more than one car, and drivers who own larger, low-powered cars, which tend to incur little damage in accidents.
Medical Insurance
Medical insurance pays the costs of hospitalization and physicians' fees for insured individuals who are injured or become ill. It is unlike medical payment liability insurance in that the place where an injury occurs or an illness begins is not involved. Coverage usually includes emergency treatment, surgery, long-term care, and sometimes dental and vision care.
Medical insurance plays according to share-the-risk rules. The premiums paid by those people who remain healthy provide the money to treat those who are ill. The cost of individual health insurance is very high, and many individuals do not purchase this insurance for themselves. Most medical insurance is purchased in group policies by employers for their employees. Employees may contribute to the premium, or they may receive the insurance as an extra benefit. Most employees are allowed to include their marital partners and dependent children by contributing to the additional cost.
Life Insurance
Life insurance is designed to insure lives, though it frequently includes coverage for major disabilities such as the loss of limbs or organs. There are basically three kinds of life insurance that may be purchased by individuals for themselves or others or by employers for their employees.
The most common kind is called term insurance, which pays a benefit to the beneficiary, or previously chosen survivor, if the insured person dies during the period of time defined in the policy. Unlike some other types of life insurance, term life coverage has no real value while an individual is alive. It exists for the financial protection of an individual's survivors.
Term life insurance premiums are based on mortality tables, statistical charts that show approximately how long individuals are likely to live. Although obviously these tables cannot predict exactly the years any one person will live, they are indicators of how long large groups of people live and allow insurers to bill individuals according to the share of risk the purchaser is asking the insurance company to take. Normally the older an individual is when purchasing the policy, the higher the premium. Underwriters also take into account an individual's health history, weight, and personal habits such as smoking. Some individuals, especially those with a history of medical problems, may not be able to purchase term life insurance, but it is generally available to all.
Whole life insurance pays a death benefit to a beneficiary but also pays dividends based on the premium and the insurance company's investments. In a whole life plan the insurer calculates how much premium is needed to pay benefits for the people it insures, invests the remainder of the premium, and pays back to the insured a portion of the earnings on investments. After a long period of time, an individual may have a paid-up policy. This means paying no more premiums but still having the policy in force.
A third kind of life insurance is new but popular among underwriters. Called universal life insurance, it combines term insurance and an investment plan that pays higher interest than does whole life insurance.
Workers' Compensation
Workers' compensation is a special state-controlled insurance purchased by employers for the benefit of their employees. Like general liability and medical payment liability insurance, it pays for medical treatment required by employees of a company according to a state-regulated schedule of benefits. The object is to prevent employees from the need to sue their employers if they are injured and to compensate workers for losses from accidents on the job.
Marine Insurance
The oldest form of insurance that scholars have been able to document, marine insurance now includes much more than the shared risk of ships' cargo. It might best be called transportation insurance because variations of the coverage include protection for ships, trucks, railroads, and aircraft. Ocean marine insurance protects shipowners and companies that ship goods by water from such perils as damage to a ship and loss of cargo from windstorm, lightning, collision, capsizing, or stranding. Also included are losses from piracy and barratry, an illegal act by captain or crew that does injury to the shipowner or cargo. Although aviation insurance is not considered ocean marine insurance, it is sold almost the same way and generally protects participants from the same perils to hull and cargo.
Inland marine insurance has become a catchall for almost any kind of transportation or storage peril. It is designed to insure cargo carried by trucks and railcars, but recently inland marine insurance has added protection from losses of data stored in computers and the temporary storage of customers' valuables by shopkeepers.
CAREERS
The insurance industry has a large range of jobs that service various parts of the business. In addition to underwriters, who decide whether or not a risk should be insured, and agents, who sell the coverage, the industry employs many kinds of engineers, who inspect property and offer advice on making property safer. When a loss occurs, claim adjusters investigate its cause as, for example, in a fire and decide how much the insurance company owes its policyholder.
The industry has developed specialists called actuaries, who, through mathematical and statistical analysis, help underwriters determine the rates applied to life insurance premiums. The industry also employs a wide range of physicians, lawyers, detectives, computer experts, mathematicians, and others to support all the major players in the game of risk.
In the latter part of the 20th century, general industry has developed its own insurance specialists who specialize in purchasing insurance for their corporations. These risk managers must be acquainted with all forms of insurance and are generally in charge of deciding what insurance a corporation should buy and how much it should pay.
Will (law), in law, disposition by an individual of his or her property, intended to take effect after death. A disposition of real property by will is termed a devise; a disposition of personal property by will is termed a bequest. The person making a will, called the testator, must have testamentary capacity, that is, must be of full age and sound mind and must act without undue influence by others.
In modern legal systems wills take three forms: witnessed, holograph, and notarial. The witnessed will system, which prevails in common law parts of the Commonwealth and in the United States, requires that a will be signed by the testator (the property owner) and by two or sometimes three witnesses. A holographic will is a document handwritten and signed by the testator, but witnesses are not required. The holographic will is accepted in parts of the United States and in civil law countries much of Europe, Asia, Africa, and Latin America. The notarial will, also accepted in most civil law countries, can be written either by the testator or by a notary. A notary is a public official who authenticates contracts, deeds, and other documents. In civil law countries the notary is a member of the legal profession.
Wills must ordinarily be in writing, but oral wills are accepted in some places because of emergency situations such as imminent danger of death.
By statute, a will is generally required to be in writing, whether it disposes of real or personal property; a soldier or sailor in combat, however, may make a will orally. A written will must be signed at the end; a testator unable to write may make an X, and such a mark is considered a valid signature. Some countries require that a will be witnessed; others do not. In the United Kingdom, two people must witness the will, that is, they must sign the will as witnesses to the signature of the testator.
All witnesses to a will must be competent. A witness is considered incompetent if he or she is a beneficiary under the terms of the will; if one of the necessary witnesses is a beneficiary, the will is void. To remedy such situations it has generally, although not universally, been provided by statute that a bequest to a subscribing witness shall be void and that the will shall otherwise be valid. If the will was valid without the beneficiary's attestation, the gift remains valid.
Attestation
An attestation clause, or a clause certifying the proper execution of the will, must usually be added after the testator's signature. The following is a simple form of such a clause:
Signed, sealed, published, and declared by Jane Doe, the testator,
as her last will and testament in the presence of us, who at her request
and in her presence and in the presence of each other have hereunto subscribed
our names as witnesses.
A.B. residing at 1,000 X Street, Blank City
C.D. residing at 1,100 X Street, Blank City
As a rule, no particular form is prescribed by the various statutes for the preparation of a will so long as the testator's intent is in writing.
A will does not take effect until the testator's death, and it can be revoked or altered until then. In some states a will is automatically invalid if the testator marries after making it. A will is not considered valid if, when it is made, the testator is mentally incompetent, acting under coercion, or trying to perpetrate a fraud. It is often difficult, however, to break wills that were so made. A holographic will may be considered invalid if it contains a printed letterhead, printed signs, or words in another person's handwriting. Witnessed wills can fail if the witnesses signed out of the testator's line of sight or for other minor reasons.
Revocation
A will is revocable until the testator's death. The only exception to this occurs when two parties simultaneously make mutually irrevocable wills in which they name one another as their respective beneficiaries and expressly give up the right to revoke their wills. A testator may revoke his or her will by destroying it, either by burning or tearing it up, or by obliterating the signature. Any part or the whole of the will may be revoked by a codicil, or an amendment to the will, executed with the same statutory formalities as the will itself.
A valid later will revokes a prior will. Disposition of property by the testator before death, as by gift or sale, is not strictly a revocation of the will, although its effect may be similar to one.
Marriage of the testator subsequent to the date of execution of the will revokes the will as to the surviving spouse or children, who are entitled to the same rights in the estate as if the testator had died intestate, that is, without leaving a will.
Probate
No disposition of an estate is made after the testator's death until the will is proved (a process called probate). The probate of a will is a court proceeding upon notice to the heirs and next of kin. Questions frequently arise regarding the construction of the terms of a will. The most important rule of construction is that the intention of the testator as it appears from the will shall be carried out whenever legally possible; when the will is ambiguous, the circumstances surrounding its execution may be examined in order to ascertain the testator's intention.
Inheritance, in law, succession to the real and personal property of a deceased individual. Inheritance may be by will (testacy) or, in the absence of a will, by operation of the statutes governing intestacy. The transfer of property by testate and intestate succession is of remote origin.
The code promulgated by the Babylonian ruler Hammurabi in the 18th century BC made provision for both testate and intestate succession. In the 6th century BC in Greece, wills were made in Athens during the time of the lawgiver Solon. The ancient code of Roman law, called the Law of the Twelve Tables, contained provisions for the disposition of testate and intestate property. In England, the introduction of feudalism resulted in the elimination of the right to dispose of real property by will, and this disability continued until the reign of King Henry VIII, under whom the enactment of the Statute of Wills partially restored the right to dispose of real property by will .Subsequently, this right was entirely restored.
Consumer Protection, rights granted by law and political pressure to those who buy goods or services, not in the course of business, but as private citizens for their own consumption or use. Consumers are afforded protection both in respect of the quality of the goods and their safety, by controls imposed on the goods during their production, sale, and use. Similar rules apply to services provided, and, in particular, to goods provided in the course of a service.
Production of Goods
The control of quality in production is largely the responsibility of the manufacturer, for whom the consequences of failure become apparent at later stages. However, certain manufactures that carry inherent dangers, such as drugs, electrical equipment, or motor vehicles, are covered by formal legal provisions.
Sale of Goods
The law grants certain minimum rights to the purchaser of goods. English law requires that goods be of a quality that is adequate for the purpose for which they are usually used, and for any particular purpose of which the seller is aware. They must also correspond to any description of them if they were sold on that basis. If any of these guarantees are broken, the buyer can return the goods and get a refund of the payment made, if he or she acts promptly, or can claim damages for the breach. While it may be possible to alter these conditions if the sale is between businesses, the ordinary consumer can never be deprived of these rights.
Under the British Trade Descriptions Act it is a criminal offence to give a false description of goods, and to attempt to persuade a consumer, by writing on the goods' packaging, that these rights do not apply.
Many manufacturers also offer a "no questions asked" money-back guarantee. This is not legally required, but it makes the goods seem more attractive, and also avoids the administrative costs of dealing with complaints under the legal procedure.
Use of Goods
Once goods have been accepted and prove to be of satisfactory quality, the consumer has legal protection if the goods subsequently prove dangerous in use. This is the case regardless of whether or not they are inherently dangerous. Formerly, the consumer had to show that the producer was negligent: this would, however, often be evident from the state of the goods. Nowadays the law, which applies throughout the European Union (EU), is more favourable to consumers, and a manufacturer is liable for any damage caused by the product unless the consequences fall within certain very limited circumstances: for example, if the danger could not reasonably be known to the maker of a newly developed product.
