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Causation is the "causal relationship between conduct and result". That is to say that causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus (an action) from which the specific injury or other effect arose and is combined with mens rea (a state of mind) to comprise the elements of guilt. Causation is only applicable where a result has been achieved and therefore is immaterial with regard to inchoate offenses.

Background concepts[link]

Most legal systems are to a greater or lesser extent concerned with the notions of fairness and justice. If a state is going to penalise a person or require that person to pay compensation to another for losses incurred, this imposition of liability will be derived from the idea that those who injure others should take responsibility for their actions. Although some parts of any legal system will have qualities of strict liability, in which the mens rea is immaterial to the result and subsequent liability of the actor, most look to establish liability by showing that the defendant was the cause of the particular injury or loss.

Even the youngest children quickly learn that, with varying degrees of probability, consequences flow from physical acts and omissions. The more predictable the outcome, the greater the likelihood that the actor caused the injury or loss intentionally. There are many ways in which the law might capture this simple rule of practical experience: that there is a natural flow to events, that a reasonable man in the same situation would have foreseen this consequence as likely to occur, that the loss flowed naturally from the breach of contractual or tortious duty, etc. However it is phrased, the essence of the degree of fault attributed will lie in the fact that reasonable people try to avoid injuring others so, if harm was foreseeable, there should be liability to the extent that the extent of the harm actually resulting was foreseeable.

The relationship between causation and liability[link]

Causation of an event by itself is not sufficient to create legal liability.

Sometimes must be applied causation is one part of a multi-stage test for legal liability. For example for the defendant to be held liable for the tort of negligence, the defendant must have (1) owed the plaintiff a duty of care; (2) breached that duty; (3) by so doing caused damage to the plaintiff; and (4) that damage must not have been too remote. Causation is but one component of the tort.

On other occasions causation is the only requirement for legal liability (other than the fact that the outcome is proscribed). For example in the law of product liability, the fact that the defendant's product caused the plaintiff harm is the only thing that matters. The defendant need not also have been negligent.

On still other occasions, causation is irrelevant to legal liability altogether. For example, under a contract of indemnity insurance, the insurer agrees to indemnify the victim for harm not caused by the insurer, but by other parties.

Because of the difficulty in establishing causation, it is one area of the law where the case law overlaps significantly with general doctrines of analytic philosophy to do with causation. The two subjects have long been somewhat intermingled.

Establishing causation[link]

Where establishing causation is required to establish legal liability, it is usually said that it involves a two-stage inquiry.

The first stage involves establishing ‘factual’ causation. Did the defendant act in the plaintiff’s loss? This must be established before inquiring into legal causation.

The second stage involves establishing ‘legal’ causation. This is often a question of public policy: is this the sort of situation in which, despite the outcome of the factual enquiry, we might nevertheless release the defendant from liability, or impose liability?

Establishing factual causation[link]

The usual method of establishing factual causation is the but-for test. The but for test inquires ‘But for the defendant’s act, would the harm have occurred?’ A shoots and wounds B. We ask ‘But for A's act, would B have been wounded?’ The answer is ‘No.’ So we conclude that A caused the harm to B. The but for test is a test of necessity. It asks was it ‘necessary’ for the defendant’s act to have occurred for the harm to have occurred.

The courts have generally accepted the but for test notwithstanding these weaknesses, qualifying it by saying that causation is to be understood “as the man in the street” would: Yorkshire Dale Steamship Co v Minister of War Transport [1942] AC 691 (HL), or by supplementing it with “common sense”: (March v Stramare (1991) 171 CLR 506 (High Court of Australia).

This dilemma was handled in the United States in State v. Tally, 15 So 722, 738 (Ala. 1894), where the court ruled that: “The assistance given ... need not contribute to criminal result in the sense that but for it the result would not have ensued. It is quite sufficient if it facilitated a result that would have transpired without it.” Using this logic, A and B are liable in that no matter who was responsible for the fatal shot, the other "facilitated" the criminal act even though his shot was not necessary to deliver the fatal blow.

However, legal scholars have attempted to make further inroads into what explains these difficult cases. Some scholars have proposed a test of sufficiency instead of a test of necessity. H. L. A. Hart and Tony Honoré, and later Richard Wright, have said that something is a cause if it is a ‘necessary element of a set of conditions jointly sufficient for the result’. This is known as the NESS test. In the case of the two hunters, the set of conditions required to bring about the result of the victim's injury would include a gunshot to the eye, the victim being in the right place at the right time, gravity, etc. In such a set, either of the hunters' shots would be a member, and hence a cause. This arguably gives us a more theoretically satisfying reason to conclude that something was a cause of something else than by appealing to notions of intuition or common sense.

Hart and Honore, in their famous work Causation in the Law, also tackle the problem of 'too many causes'. For them, there are degrees of causal contribution. A member of the NESS set is a "causally relevant condition". This is elevated into a "cause" where it is a deliberate human intervention, or an abnormal act in the context. So, returning to our hunter example, hunter A's grandmother's birth is a causally relevant condition, but not a "cause". On the other hand, hunter A's gunshot, being a deliberate human intervention in the ordinary state of affairs, is elevated to the status of "cause". An intermediate position can be occupied by those who "occasion" harm, such as accomplices. Imagine an accomplice to a murder who drives the principal to the scene of the crime. Clearly the principal's act in committing the murder is a "cause" (on the but for or NESS test). So is the accomplice's act in driving the principal to the scene of the crime. However the causal contribution is not of the same level (and, incidentally, this provides some basis for treating principals and accomplices differently under criminal law). Leon Green and Jane Stapleton are two scholars who take the opposite view. They consider that once something is a "but for" (Green) or NESS (Stapleton) condition, that ends the factual inquiry altogether, and anything further is a question of policy.

Establishing legal causation[link]

Notwithstanding the fact that causation may be established in the above situations, the law often intervenes and says that it will nevertheless not hold the defendant liable because in the circumstances the defendant is not to be understood, in a legal sense, as having caused the loss. In the United States, this is known as the doctrine of proximate cause. The most important doctrine is that of novus actus interveniens, which means a ‘new intervening act’ which may ‘cut the chain of causation’.

Proximate cause[link]

The but-for test often gives us the right answer to causal problems, but sometimes not. Two difficulties are immediately obvious. The first is that under the but-for test, almost anything is a cause. But for a tortfeasor's grandmother's birth, the relevant tortious conduct would not have occurred. But for the victim of a crime missing the bus, he or she would not have been at the site of the crime and hence the crime would not have occurred. Yet in these two cases, the grandmother's birth or the victim's missing the bus are not intuitively causes of the resulting harm. This often does not matter in the case where cause is only one element of liability, as the remote actor will most likely not have committed the other elements of the test. The legally liable cause is the one closest to or most proximate to the injury. This is known as the Proximate Cause rule. However, this situation can arise in strict liability situations.

Intervening cause[link]

Imagine the following. A critically injures B. As B is wheeled to an ambulance, she is struck by lightning. She would not have been struck if she had not been injured in the first place. Clearly then, A caused B's whole injury on the ‘but for’ or NESS test. However, at law, the intervention of a supervening event renders the defendant not liable for the injury caused by the lightning.

The effect of the principle may be stated simply:

if the new event, whether through human agency or natural causes, does not break the chain, the original actor is liable for all the consequences flowing naturally from the initial circumstances. But if the new act breaks the chain, the liability of the initial actor stops at that point, and the new actor, if human, will be liable for all that flows from his or her contribution.

Note, however, that this does not apply if the Eggshell skull rule is used. For details, see the article on the Eggshell Skull doctrine.

Independent sufficient causes[link]

When two or more negligent parties, where the consequence of their negligence joins together to cause damages, in a circumstance where either one of them alone would have caused it anyway, each is deemed to be an "Independent Sufficient Cause," because each could be deemed a "substantial factor," and both are held legally responsible for the damages. For example, where negligent firestarter A's fire joins with negligent firestarter B's fire to burn down House C, both A and B are held responsible. (e.g., Anderson v. Minneapolis, St: P. & S. St. R.R. Co., 146 Minn. 430, 179 N.W. 45 (1920).) This is an element of Legal Cause.

[edit] Summers v. Tice Rule

The other problem is that of overdetermination. Imagine two hunters, A and B, who each negligently fire a shot that takes out C's eye. Each shot on its own would have been sufficient to cause the damage. But for A's shot, would C's eye have been taken out? Yes. The same answer follows in relation to B's shot. But on the but-for test, this leads us to the counterintuitive position that neither shot caused the injury. However, courts have held that in order for each of the defendants to avoid liability for lack of actual cause, it is necessary to hold both of them responsible, See Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). This is known, simply, as the Summers v. Tice Rule.

Concurrent actual causes[link]

Suppose that two actors' negligent acts combine to produce one set of damages, where but for either of their negligent acts, no damage would have occurred at all. This is two negligences contributing to a single cause, as distinguished from two separate negligences contributing to two successive or separate causes. These are "concurrent actual causes". In such cases, courts have held both defendants liable for their negligent acts. Example: A leaves truck parked in the middle of the road at night with its lights off. B fails to notice it in time and plows into it, where it could have been avoided, except for want of negligence, causing damage to both vehicles. Both parties were negligent. (Hill v. Edmonds, 26 A.D.2d 554, 270 N.Y.S.2d 1020 (1966).)

Foreseeability[link]

This is usually expressed as a question of 'foreseeability'. An actor is liable for the foreseeable, but not the unforeseeable, consequences of his or her act. For example it is foreseeable that if I shoot someone on a beach and they are immobilized, they may drown in a rising tide rather than from the trauma of the gunshot wound or from loss of blood. However it is not (generally speaking) foreseeable that they will be struck by lightning and killed by that event.

This type of causal foreseeability is to be distinguished from foreseeability of extent or kind of injury, which is a question of remoteness of damage, not causation. For example, if I^[who?] conduct welding work on a dock that lights an oil slick that destroys a ship a long way down the river, it would be hard to construe my negligence as anything other than causal of the ship's damage. There is no novus actus interveniens. However, I may not be held liable if that damage is not of a type foreseeable as arising from my negligence: The Wagon Mound (No 1) [1961] AC 388 (Privy Council). That is a question of public policy, and not one of causation.^{[original research?]}

Example[link]

An example of how foreseeability does not apply to the extent of an injury is the eggshell skull rule. If Neal Townsend punched Matt Wisda in the jaw, it is foreseeable that Matt Wisda will suffer a bodily injury that he will need to go to the hospital for. However, if his jaw is very weak, and his jaw comes completely off from my punch, then the doctor bills, which would have been about $5,000 for wiring his jaw shut had now become $100,000 for a full-blown jaw re-attachment. Neal Townsend would still be liable for the entire $100,000, even though $95,000 of those damages were not reasonably foreseeable.

Other relevant considerations[link]

Because causation in the law is a complex amalgam of fact and policy, other doctrines are also important, such as foreseeability and risk. Particularly in the United States, where the doctrine of 'proximate cause' effectively amalgamates the two stage factual then legal causation inquiry favoured in the English system, one must always be alert to these considerations in assessing the postulated relationship between two events.

Foreseeability tests[link]

Some aspects of the physical world are so inevitable that it is always reasonable to impute knowledge of their incidence. So if A abandons B on a beach, A must be taken to foresee that the tide comes in and goes out. But the mere fact that B subsequently drowns is not enough. A court would have to consider where the body was left and what level of injury A believed that B had suffered. If B was left in a position that any reasonable person would consider safe but a storm surge caused extensive flooding throughout the area, this might be a novus actus. That B was further injured by an event within a foreseen class does not of itself require a court to hold that every incident falling within that class is a natural link in the chain. Only those causes that are reasonably foreseeable fit naturally into the chain. So if A had heard a weather forecast predicting a storm, the drowning will be a natural outcome. But if this was an event like a flash flood, an entirely unpredictable event, it will be a novus actus.

The question of A's beliefs is no different. If A honestly believes that B is only slightly injured and so could move himself out of danger without difficulty, how fair is it to say that he ought to have foreseen? The test is what the reasonable person would have known and foreseen, given what A had done. It is the function of any court to evaluate behaviour. A defendant cannot evade responsibility through a form of wilful blindness. Fault lies not only in what a person actually believes, but also in failing to understand what the vast majority of other people would have understood. Hence, the test is hybrid, looking both at what the defendant actually knew and foresaw (i.e. subjective), and at what the reasonable person would have known (i.e. objective) and then combining the conclusions into a general evaluation of the degree of fault or blameworthiness.

Similarly, in the quantification of damages generally and/or the partitioning of damages between two or more defendants, the extent of the liability to compensate the plaintiff(s) will be determined by what was reasonably foreseeable. So if, for example, the plaintiff unexpectedly contributed to the extent of the loss suffered, that additional element would not be included in the damages award even though the plaintiff would not have had the opportunity to make this mistake had it not been for the defendant's breach. In cases involving the partitioning of damages between multiple defendants, each will be liable to the extent that their contribution foreseeably produced the loss.

Risk[link]

Sometimes the reverse situation to a novus actus occurs, i.e. factual causation cannot be proved but the court nevertheless does want to hold the defendant liable. In Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980) the plaintiff's mother consumed diethylstilbestrol as a miscarriage preventative.^[1] The medicine, later re-called from the market, caused the defendant to develop a malignant bladder tumor due to its negligent manufacture.^[1] However, there were many manufacturers of that drug in the market. The manufacturer of the particular medication that caused the injury could not be ascertained for certain.^[2] The court held that the defendant was liable in proportion to its market share.^[3] They departed from traditional notions of pure cause and adopted a ‘risk based’ approach to liability. The defendant was held liable because of the amount of risk it contributed to the occasioning of the harm.^[3] Note that a risk theory is not strictly a theory built on notions of cause at all, as, by definition, the person who caused the injury could not be ascertained for certain. However, it does show that legal notions of causation are a complex mixture of factual causes and ideas of public policy relating to the availability of legal remedies. In R v Miller [1982] UKHL 6, the House of Lords said that a person who puts a person in a dangerous position, in that case a fire, will be criminally liable if he does not adequately rectify the situation.

Evidence proving causation[link]

To be acceptable, any rule of law must be capable of being applied consistently so a definition of the criteria for this qualitative analysis must be supplied. Let us assume a purely factual analysis as a starting point. A injures B and leaves him lying in the road. C is a driver who fails to see B on the road and by running over him, contributes to the cause of his death. It would be possible to ask for a detailed medical evaluation at a post mortem to determine the initial degree of injury and the extent to which B's life was threatened, followed by a second set of injuries from the collision and their contribution. If the first incident merely damaged B's leg so that he could not move, it is tempting to assert that C's driving must have been the more substantial cause and so represents a novus actus breaking the chain. Equally, if B was bleeding to death and the only contribution that the driving made was to break B's arm, the driving is not a novus actus and does not break the chain. But this approach ignores the issue of A's foresight.

Roads are, by their nature, used by vehicles and it is clearly foreseeable that a person left lying on the road is at risk of being further injured by an inattentive driver. Hence, if A leaves B on the road with knowledge of that risk and the foreseen event occurs, A remains the more proximate cause. This leaves whether the test of foresight should be subjective, objective or hybrid (i.e. both subjective and objective). Obviously, there is no difficulty in holding A liable if A had actual knowledge of the likelihood that B would be further injured by a driver. The fault which caused the initial injury is compounded by the omission to move B to a safer place or call for assistance. But let us assume that A never adverts to the possibility of further injury. The issue is now the extent to which knowledge may be imputed objectively.

The future?[link]

A difficult issue that has arisen recently is the case where the defendant neither factually causes the harm, nor increases the risk of its occurrence. In Chester v Afshar [2004] 4 All ER 587 (HL), a doctor negligently failed to warn a patient of risks inherent in an operation, specifically cauda equina syndrome.^[4] The patient had the operation and a risk materialized causing injury.^[4] It was found that even if the patient had been warned, the patient would still have undergone the operation, simply at a different time.^[5] The risk of the injury would be the same at both times. Accordingly, the doctor neither caused the injury (because but for the failure to warn, the patient would still have gone ahead with the operation), nor increased the risk of its occurrence (because the risk was the same either way). Yet the House of Lords, embracing a more normative approach to causation, still held the doctor liable. Lawyers and philosophers continue to debate whether and how this changes the state of the law.

English criminal case law examples[link]

[edit] Novus actus interveniens

• Victim's contribution R v Dear (1996) CLR 595. Believing that the victim had sexually interfered with his 12 year old daughter, the defendant attacked the victim with a Stanley knife. The defendant argued that the chain of causation had been broken because, two days later, the victim had committed suicide either by reopening his wounds or because he had failed to take steps to staunch the blood flow after the wounds had reopened spontaneously (i.e. the potential suicide constituted a novus actus interveniens). It was held that the real question was whether the injuries inflicted by the defendant were an operating and significant cause of or contribution to the death. Distinctions between the victim's mere self-neglect (no break in the chain) and the victim's gross self-neglect (break in the chain) were not helpful. The victim's death resulted from bleeding from the artery severed by the defendant. Whether the resumption or continuation of that bleeding was deliberately caused by the victim, the defendant's conduct remained the operative and significant cause of the victim's death.
• Third party's inadvertent contribution R v Smith (1959) 2 QB 35 the defendant stabbed his victim twice in a barrack room brawl. Another soldier carried him to the medical centre but dropped him twice. The medical captain was very busy and failed to recognise the extent of the injuries. If the soldier had received proper treatment, he would have had a good chance of a complete recovery. Smith was convicted of manslaughter because the wound was the "operating and substantial cause of death". In R v Cheshire (1991) 3 AER 670, the victim was shot in the leg and stomach. In hospital, he suffered pneumonia and respiratory problems in intensive care so had a tracheotomy. After two months, he died. There was some medical negligence because the tracheotomy had caused a thickening of tissue ultimately causing suffocation. In upholding the conviction for murder, Beldam LJ. laid down the following test:

Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant.

• Third party's deliberate intervention R v Malcherek (1981) 73 Cr. App. R. 173. The victim was placed on a life support machine and, after determining that she was brain dead, the doctors turned off the machine. The defendant appealed the conviction of murder arguing that the doctors had broken the chain of causation by deliberately switching off the life support machine. It was held that the original wounds were the operating and substantial cause of death, and that a life support machine does no more than hold the effect of the injuries in suspension and when the machine is switched off, the original wounds continue to cause the death no matter how long the victim survives after the machine's disconnection. In R v Pagett (1983) 76 Cr. App. R. 279, to resist lawful arrest, the defendant held a girl in front of him as a shield and shot at armed policemen. The police instinctively fired back and killed the girl. The Court of Appeal held that the defendant's act caused the death and that the reasonable actions of a third party acting in self-defence could not be regarded as a novus actus interveniens because self-defence is a foreseeable consequence of his action and had not broken the chain of causation.

Foreseeability[link]

• Victim's conscious actions R v. Blaue (1975) 61 Cr. App. R. 271 is a criminal law application of the "thin skull rule" in criminal law. The defendant visited the home of a Jehovah's Witness and demanded sex. When she refused, he stabbed her four times. At hospital, she refused a blood transfusion which would have saved her life. There was no suggestion that the doctors had acted improperly. Blaue was convicted of manslaughter by an unlawful act, namely wounding with intent. "But for" his actions, she would not have been faced with the choice about treatment and those who use violence on others must take their victims as they find them (albeit that he had known her religion and so her refusal was foreseeable).

Causation: law and science compared[link]

Science and law have different functions but share striking similarities. Both purport to provide rational, reasoned, independent, unbiased processes concerned with the objective assessment of evidence. There are also striking differences. Scientific assertions compared with determinations of legal causation have the following characteristics:

• they are population-based, not individual; general not particular;
• they are probabilistic, not deterministic;
• they are generally expressed as the refutation of the hypothesis and not a finding of fact or proof of an allegation;
• the evidence is not exhaustive, whereas an adjudication is determined according to the evidence available.
• science is not as concerned with finality as is law. There is no res judicata or collateral estoppel in science. Continuing scrutiny is always available and the jury can be brought back in at any time when new data becomes available.

The major distinction between legal determinations and scientific assertions lies in the concept of certainty. The legal concept of causation is deterministic: it is an expression of the fiction of certainty, an absolute concept. The scientific concept of causation is probabilistic: it is an expression of the uncertainty of truth, an asymptotic concept.

References[link]

External links[link]

• Causation in the Law entry by Antony Honoré in the Stanford Encyclopedia of Philosophy

v t e English criminal law Part of the common law series Classes of crimes Common law Indictable Either way Summary Regulatory Lesser included Elements of crimes Actus reus Causation Mens rea Intention (criminal law) Intention in English law Recklessness Criminal negligence Corporate / Vicarious / Strict liability Omissions Concurrence Ignorantia juris non excusat Inchoate offences Encouraging or assisting crime Conspiracy Accessory Attempt Common purpose Defences Self-defence Duress Necessity Marital coercion Consent Insanity Diminished responsibility Intoxication Category:Criminal defences Offences against the person Homicide (Murder / Manslaughter / Corporate manslaughter / Infanticide) Child destruction Wounding or causing grievous bodily harm Assault occasioning actual bodily harm Common assault Battery Kidnapping False imprisonment Harassment Offences against the Person Act 1861 Sexual offences Rape Sexual assault Sexual Offences Act 2003 Public order offences Riot Violent disorder Affray Fear or provocation of violence Intentional harassment, alarm or distress Harassment, alarm or distress Public Order Act 1986 Nuisance Public nuisance Offences against property Dishonesty Burglary Robbery Theft Taken Without Owner's Consent (TWOC) Deception Handling stolen goods Blackmail Computer crime Theft Act 1968 Theft Act 1978 Fraud Act 2006 Criminal damage Conspiracy to defraud Forgery, personation and cheating Forgery Cheating the public revenue Offences against justice Bribery Perjury Perverting the course of justice Other common law areas Contract Tort Property Wills Trusts and estates Evidence See also Criminal procedure History Law of England and Wales portal Criminal justice portal

The examples and perspective in this article may not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page. (May 2012)

Lady Justice is the symbol of justice. Lady Justice is depicted as a goddess equipped with three symbols of justice: a sword symbolising the court's coercive power; scales representing an objective standard by which competing claims are weighed; and a blindfold indicating that justice is (or should be) meted out objectively, without fear or favor, regardless of identity, money, power, or weakness.^[1]

The Law^[2] is a system of rules and guidelines which are enforced through social institutions to govern behavior.^[3] Laws are made by governments, specifically by their legislatures. The formation of laws themselves may be influenced by a constitution (written or unwritten) and the rights encoded therein. The law shapes politics, economics and society in countless ways and serves as a social mediator of relations between people.

A general distinction can be made between civil law jurisdictions (including Canon and Socialist law), in which the legislature or other central body codifies and consolidates their laws and common law systems (including Sharia), where judge-made binding precedents are accepted. In some countries, religion may inform the law; for example, in jurisdictions that practice Islamic law, Jewish law or Canon law.

The adjudication of the law is generally divided into two main areas. Criminal law deals with conduct that is designated dishonest by the government and in which the guilty party may be imprisioned or fined. Civil law (not to be confused with civil law jurisdictions above) deals with disputes between individuals or organizations, in which compensation may be awarded to the wronged litigant.

Under civil law, the following specialties, among others, exist: Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law regulates the transfer and title of personal property and real property. Trust law applies to assets held for investment and financial security. Tort law allows claims for compensation if a person's property are harmed. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies. International law governs affairs between sovereign states in activities ranging from trade to military action.

To implement and enforce the law and provide services to the public, a government's bureaucracy, the military and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress^{[citation needed]}.

Law provides a rich source of scholarly inquiry into legal history, philosophy, economic analysis and sociology. Law also raises important and complex issues concerning equality, fairness, and justice. "In its majestic equality", said the author Anatole France in 1894, "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread."^[4] Writing in 350 BCE, the Greek philosopher Aristotle declared, "The rule of law is better than the rule of any individual."^[5]

In a presidential democracy, the constitution is sovereign and the central institutions for interpreting and creating law are the three main branches of government, namely an impartial judiciary, a democratic legislature, and an accountable executive. In parliamentary systems, the legislature is sovereign and appoints one of its members as the executive (often called the prime minister). The judicial branch is under the parliament.

Legal subjects[link]

All legal systems deal with the same basic issues, but jurisdictions categorise and identify its legal subjects in different ways. A common distinction is that between "public law" (a term related closely to the state, and including constitutional, administrative and criminal law), and "private law" (which covers contract, tort and property).^[6] In civil law systems, contract and tort fall under a general law of obligations, while trusts law is dealt with under statutory regimes or international conventions. International, constitutional and administrative law, criminal law, contract, tort, property law and trusts are regarded as the "traditional core subjects",^[7] although there are many further disciplines .

International law[link]

Providing a constitution for public international law, the United Nations system was agreed during World War II

International law can refer to three things: public international law, private international law or conflict of laws and the law of supranational organisations.

• Public international law concerns relationships between sovereign nations. The sources for public international law development are custom, practice and treaties between sovereign nations, such as the Geneva Conventions. Public international law can be formed by international organisations, such as the United Nations (which was established after the failure of the League of Nations to prevent the Second World War),^[8] the International Labour Organisation, the World Trade Organisation, or the International Monetary Fund. Public international law has a special status as law because there is no international police force, and courts (e.g. the International Court of Justice as the primary UN judicial organ) lack the capacity to penalise disobedience.^[9] However, a few bodies, such as the WTO, have effective systems of binding arbitration and dispute resolution backed up by trade sanctions.^[10]

• Conflict of laws (or "private international law" in civil law countries) concerns which jurisdiction a legal dispute between private parties should be heard in and which jurisdiction's law should be applied. Today, businesses are increasingly capable of shifting capital and labour supply chains across borders, as well as trading with overseas businesses, making the question of which country has jurisdiction even more pressing. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958.^[11]

• European Union law is the first and, so far, only example of a internationally accepted legal system other than the UN and the World Trade Organisation. Given the trend of increasing global economic integration, many regional agreements—especially the Union of South American Nations—are on track to follow the same model. In the EU, sovereign nations have gathered their authority in a system of courts and political institutions. These institutions are allowed the ability to enforce legal norms both against or for member states and citizens in a manner which is not possible through public international law.^[12] As the European Court of Justice said in the 1960s, European Union law constitutes "a new legal order of international law" for the mutual social and economic benefit of the member states.^[13]

Constitutional and administrative law[link]

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

Constitutional and administrative law govern the affairs of the state. Constitutional law concerns both the relationships between the executive, legislature and judiciary and the human rights or civil liberties of individuals against the state. Most jurisdictions, like the United States and France, have a single codified constitution with a bill of rights. A few, like the United Kingdom, have no such document. A "constitution" is simply those laws which constitute the body politic, from statute, case law and convention. A case named Entick v Carrington^[14] illustrates a constitutional principle deriving from the common law. Mr Entick's house was searched and ransacked by Sheriff Carrington. When Mr Entick complained in court, Sheriff Carrington argued that a warrant from a Government minister, the Earl of Halifax, was valid authority. However, there was no written statutory provision or court authority. The leading judge, Lord Camden, stated that,

The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole ... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.^[15]

The fundamental constitutional principle, inspired by John Locke, holds that the individual can do anything but that which is forbidden by law, and the state may do nothing but that which is authorised by law.^[16][17] Administrative law is the chief method for people to hold state bodies to account. People can apply for judicial review of actions or decisions by local councils, public services or government ministries, to ensure that they comply with the law. The first specialist administrative court was the Conseil d'État set up in 1799, as Napoleon assumed power in France.^[18]

Criminal law[link]

Criminal law, also known as penal law, pertains to crimes and punishment.^[19] It thus regulates the definition of and penalties for offences found to have a sufficiently deleterious social impact but, in itself, makes no moral judgment on an offender nor imposes restrictions on society that physically prevents people from committing a crime in the first place.^[20] Investigating, apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure.^[21] The paradigm case of a crime lies in the proof, beyond reasonable doubt, that a person is guilty of two things. First, the accused must commit an act which is deemed by society to be criminal, or actus reus (guilty act).^[22] Second, the accused must have the requisite malicious intent to do a criminal act, or mens rea (guilty mind). However for so called "strict liability" crimes, an actus reus is enough.^[23] Criminal systems of the civil law tradition distinguish between intention in the broad sense (dolus directus and dolus eventualis), and negligence. Negligence does not carry criminal responsibility unless a particular crime provides for its punishment.^[24][25]

A depiction of a 1600s criminal trial, for witchcraft in Salem

Examples of crimes include murder, assault, fraud and theft. In exceptional circumstances defences can apply to specific acts, such as killing in self defence, or pleading insanity. Another example is in the 19th century English case of R v Dudley and Stephens, which tested a defence of "necessity". The Mignonette, sailing from Southampton to Sydney, sank. Three crew members and Richard Parker, a 17 year old cabin boy, were stranded on a raft. They were starving and the cabin boy was close to death. Driven to extreme hunger, the crew killed and ate the cabin boy. The crew survived and were rescued, but put on trial for murder. They argued it was necessary to kill the cabin boy to preserve their own lives. Lord Coleridge, expressing immense disapproval, ruled, "to preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it." The men were sentenced to hang, but public opinion was overwhelmingly supportive of the crew's right to preserve their own lives. In the end, the Crown commuted their sentences to six months in jail.^[26]

Criminal law offences are viewed as offences against not just individual victims, but the community as well.^[20] The state, usually with the help of police, takes the lead in prosecution, which is why in common law countries cases are cited as "The People v ..." or "R (for Rex or Regina) v ..." Also, lay juries are often used to determine the guilt of defendants on points of fact: juries cannot change legal rules. Some developed countries still condone capital punishment for criminal activity, but the normal punishment for a crime will be imprisonment, fines, state supervision (such as probation), or community service. Modern criminal law has been affected considerably by the social sciences, especially with respect to sentencing, legal research, legislation, and rehabilitation.^[27] On the international field, 111 countries are members of the International Criminal Court, which was established to try people for crimes against humanity.^[28]

Contract law[link]

The famous Carbolic Smoke Ball advertisement to cure influenza was held to be a unilateral contract

Contract law concerns enforceable promises, and can be summed up in the Latin phrase pacta sunt servanda (agreements must be kept).^[29] In common law jurisdictions, three key elements to the creation of a contract are necessary: offer and acceptance, consideration and the intention to create legal relations. In Carlill v Carbolic Smoke Ball Company a medical firm advertised that its new wonder drug, the smokeball, would cure people's flu, and if it did not, the buyers would get £100. Many people sued for their £100 when the drug did not work. Fearing bankruptcy, Carbolic argued the advert was not to be taken as a serious, legally binding offer. It was an invitation to treat, mere puff, a gimmick. But the court of appeal held that to a reasonable man Carbolic had made a serious offer. People had given good consideration for it by going to the "distinct inconvenience" of using a faulty product. "Read the advertisement how you will, and twist it about as you will", said Lord Justice Lindley, "here is a distinct promise expressed in language which is perfectly unmistakable".^[30]

"Consideration" indicates the fact that all parties to a contract have exchanged something of value. Some common law systems, including Australia, are moving away from the idea of consideration as a requirement. The idea of estoppel or culpa in contrahendo, can be used to create obligations during pre-contractual negotiations.^[31] In civil law jurisdictions, consideration is not required for a contract to be binding.^[32] In France, an ordinary contract is said to form simply on the basis of a "meeting of the minds" or a "concurrence of wills". Germany has a special approach to contracts, which ties into property law. Their 'abstraction principle' (Abstraktionsprinzip) means that the personal obligation of contract forms separately from the title of property being conferred. When contracts are invalidated for some reason (e.g. a car buyer is so drunk that he lacks legal capacity to contract)^[33] the contractual obligation to pay can be invalidated separately from the proprietary title of the car. Unjust enrichment law, rather than contract law, is then used to restore title to the rightful owner.^[34]

Tort law[link]

The "McLibel" two were involved in the longest running case in UK history for publishing a pamphlet criticising McDonald's restaurants.

Torts, sometimes called delicts, are civil wrongs. To have acted tortiously, one must have breached a duty to another person, or infringed some pre-existing legal right. A simple example might be accidentally hitting someone with a cricket ball.^[35] Under the law of negligence, the most common form of tort, the injured party could potentially claim compensation for his injuries from the party responsible. The principles of negligence are illustrated by Donoghue v Stevenson.^[36] A friend of Mrs Donoghue ordered an opaque bottle of ginger beer (intended for the consumption of Mrs Donoghue) in a café in Paisley. Having consumed half of it, Mrs Donoghue poured the remainder into a tumbler. The decomposing remains of a snail floated out. She claimed to have suffered from shock, fell ill with gastroenteritis and sued the manufacturer for carelessly allowing the drink to be contaminated. The House of Lords decided that the manufacturer was liable for Mrs Donoghue's illness. Lord Atkin took a distinctly moral approach, and said,

The liability for negligence ... is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay ... The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.^[37]

This became the basis for the four principles of negligence; (1) Mr Stevenson owed Mrs Donoghue a duty of care to provide safe drinks (2) he breached his duty of care (3) the harm would not have occurred but for his breach and (4) his act was the proximate cause, or not too remote a consequence, of her harm.^[36] Another example of tort might be a neighbour making excessively loud noises with machinery on his property.^[38] Under a nuisance claim the noise could be stopped. Torts can also involve intentional acts, such as assault, battery or trespass. A better known tort is defamation, which occurs, for example, when a newspaper makes unsupportable allegations that damage a politician's reputation.^[39] More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes,^[40] when statute does not provide immunity.^[41]

Property law[link]

A painting of the South Sea Bubble, one of the world's first ever speculations and crashes, led to strict regulation on share trading.^[42]

Property law governs valuable things that people call 'theirs'. Real property, sometimes called 'real estate' refers to ownership of land and things attached to it.^[43] Personal property, refers to everything else; movable objects, such as computers, cars, jewelry or intangible rights, such as stocks and shares. A right in rem is a right to a specific piece of property, contrasting to a right in personam which allows compensation for a loss, but not a particular thing back. Land law forms the basis for most kinds of property law, and is the most complex. It concerns mortgages, rental agreements, licences, covenants, easements and the statutory systems for land registration. Regulations on the use of personal property fall under intellectual property, company law, trusts and commercial law. An example of a basic case of most property law is Armory v Delamirie [1722].^[44] A chimney sweep's boy found a jewel encrusted with precious stones. He took it to a goldsmith to have it valued. The goldsmith's apprentice looked at it, sneakily removed the stones, told the boy it was worth three halfpence and that he would buy it. The boy said he would prefer the jewel back, so the apprentice gave it to him, but without the stones. The boy sued the goldsmith for his apprentice's attempt to cheat him. Lord Chief Justice Pratt ruled that even though the boy could not be said to own the jewel, he should be considered the rightful keeper ("finders keeper") until the original owner is found. In fact the apprentice and the boy both had a right of possession in the jewel (a technical concept, meaning evidence that something could belong to someone), but the boy's possessory interest was considered better, because it could be shown to be first in time. Possession may be nine tenths of the law, but not all.

This case is used to support the view of property in common law jurisdictions, that the person who can show the best claim to a piece of property, against any contesting party, is the owner.^[45] By contrast, the classic civil law approach to property, propounded by Friedrich Carl von Savigny, is that it is a right good against the world. Obligations, like contracts and torts are conceptualised as rights good between individuals.^[46] The idea of property raises many further philosophical and political issues. Locke argued that our "lives, liberties and estates" are our property because we own our bodies and mix our labour with our surroundings.^[47]

Equity and trusts[link]

The Court of Chancery, London, early 19th century

Equity is a body of rules that developed in England separately from the "common law". The common law was administered by judges. The Lord Chancellor on the other hand, as the King's keeper of conscience, could overrule the judge made law if he thought it equitable to do so.^[48] This meant equity came to operate more through principles than rigid rules. For instance, whereas neither the common law nor civil law systems allow people to split the ownership from the control of one piece of property, equity allows this through an arrangement known as a 'trust'. 'Trustees' control property, whereas the 'beneficial' (or 'equitable') ownership of trust property is held by people known as 'beneficiaries'. Trustees owe duties to their beneficiaries to take good care of the entrusted property.^[49] In the early case of Keech v Sandford [1722]^[50] a child had inherited the lease on a market in Romford, London. Mr Sandford was entrusted to look after this property until the child matured. But before then, the lease expired. The landlord had (apparently) told Mr Sandford that he did not want the child to have the renewed lease. Yet the landlord was happy (apparently) to give Mr Sandford the opportunity of the lease instead. Mr Sandford took it. When the child (now Mr Keech) grew up, he sued Mr Sandford for the profit that he had been making by getting the market's lease. Mr Sandford was meant to be trusted, but he put himself in a position of conflict of interest. The Lord Chancellor, Lord King, agreed and ordered Mr Sandford should disgorge his profits. He wrote,

I very well see, if a trustee, on the refusal to renew, might have a lease to himself few trust-estates would be renewed ... This may seem very hard, that the trustee is the only person of all mankind who might not have the lease; but it is very proper that the rule should be strictly pursued and not at all relaxed.

Of course, Lord King LC was worried that trustees might exploit opportunities to use trust property for themselves instead of looking after it. Business speculators using trusts had just recently caused a stock market crash. Strict duties for trustees made their way into company law and were applied to directors and chief executive officers. Another example of a trustee's duty might be to invest property wisely or sell it.^[51] This is especially the case for pension funds, the most important form of trust, where investors are trustees for people's savings until retirement. But trusts can also be set up for charitable purposes, famous examples being the British Museum or the Rockefeller Foundation.

Further disciplines[link]

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

Law and society

A trade union protest by UNISON while on strike

• Labour law is the study of a tripartite industrial relationship between worker, employer and trade union. This involves collective bargaining regulation, and the right to strike. Individual employment law refers to workplace rights, such as job securiy, health and safety or a minimum wage.
• Human rights, civil rights and human rights law are important fields to guarantee everyone basic freedoms and entitlements. These are laid down in codes such as the Universal Declaration of Human Rights, the European Convention on Human Rights (which founded the European Court of Human Rights) and the U.S. Bill of Rights. The Treaty of Lisbon makes the Charter of Fundamental Rights of the European Union legally binding in allmember states except Charter of Fundamental Rights of the European Union – Poland and the United Kingdom.^[52]
• Civil procedure and criminal procedure concern the rules that courts must follow as a trial and appeals proceed. Both concern a citizen's right to a fair trial or hearing.
• Evidence law involves which materials are admissible in courts for a case to be built.
• Immigration law and nationality law concern the rights of foreigners to live and work in a nation-state that is not their own and to acquire or lose citizenship. Both also involve the right of asylum and the problem of stateless individuals.
• Social security law refers to the rights people have to social insurance, such as jobseekers' allowances or housing benefits.
• Family law covers marriage and divorce proceedings, the rights of children and rights to property and money in the event of separation.

Law and commerce

• Company law sprang from the law of trusts, on the principle of separating ownership of property and control.^[53] The law of the modern company began with the Joint Stock Companies Act 1856, passed in the United Kingdom, which provided investors with a simple registration procedure to gain limited liability under the separate legal personality of the corporation.
• Commercial law covers complex contract and property law. The law of agency, insurance law, bills of exchange, insolvency and bankruptcy law and sales law are all important, and trace back to the mediæval Lex Mercatoria. The UK Sale of Goods Act 1979 and the US Uniform Commercial Code are examples of codified common law commercial principles.
• Admiralty law and the Law of the Sea lay a basic framework for free trade and commerce across the world's oceans and seas, where outside of a country's zone of control. Shipping companies operate through ordinary principles of commercial law, generalised for a global market. Admiralty law also encompasses specialised issues such as salvage, maritime liens, and injuries to passengers.
• Intellectual property law aims at safeguarding creators and other producers of intellectual goods and services. These are legal rights (copyrights, trademarks, patents, and related rights) which result from intellectual activity in the industrial, literary and artistic fields.^[54]
• Restitution deals with the recovery of someone else's gain, rather than compensation for one's own loss.
• Unjust enrichment When someone has been unjustly enriched (or there is an "absence of basis" for a transaction) at another's expense, this event generates the right to restitution to reverse that gain.

Law and regulation

The New York Stock Exchange trading floor after the Wall Street Crash of 1929, before tougher banking regulation was introduced

• Tax law involves regulations that concern value added tax, corporate tax, income tax.
• Banking law and financial regulation set minimum standards on the amounts of capital banks must hold, and rules about best practice for investment. This is to insure against the risk of economic crises, such as the Wall Street Crash of 1929.
• Regulation deals with the provision of public services and utilities. Water law is one example. Especially since privatisation became popular and took management of services away from public law, private companies doing the jobs previously controlled by government have been bound by varying degrees of social responsibility. Energy, gas, telecomms and water are regulated industries in most OECD countries.
• Competition law, known in the U.S. as antitrust law, is an evolving field that traces as far back as Roman decrees against price fixing and the English restraint of trade doctrine. Modern competition law derives from the U.S. anti-cartel and anti-monopoly statutes (the Sherman Act and Clayton Act) of the turn of the 20th century. It is used to control businesses who attempt to use their economic influence to distort market prices at the expense of consumer welfare.
• Consumer law could include anything from regulations on unfair contractual terms and clauses to directives on airline baggage insurance.
• Environmental law is increasingly important, especially in light of the Kyoto Protocol and the potential danger of climate change. Environmental protection also serves to penalise polluters within domestic legal systems.

Legal systems[link]

In general, legal systems can be split between civil law and common law systems.^[55] The term "civil law" referring to a legal system should not be confused with "civil law" as a group of legal subjects distinct from criminal or public law. A third type of legal system—accepted by some countries without separation of church and state—is religious law, based on scriptures. The specific system that a country is ruled by is often determined by its history, connections with other countries, or its adherence to international standards. The sources that jurisdictions adopt as authoritatively binding are the defining features of any legal system. Yet classification is a matter of form rather than substance, since similar rules often prevail.

Civil law[link]

First page of the 1804 edition of the Napoleonic Code

Civil law is the legal system used in most countries around the world today. In civil law the sources recognised as authoritative are, primarily, legislation—especially codifications in constitutions or statutes passed by government—and custom.^[56] Codifications date back millennia, with one early example being the Babylonian Codex Hammurabi. Modern civil law systems essentially derive from the legal practice of the 6th-century Eastern Roman Empire whose texts were rediscovered by late medieval Western Europe. Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class.^[57] Instead a lay magistrate, iudex, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised.^[58] Each case was to be decided afresh from the laws of the State, which mirrors the (theoretical) unimportance of judges' decisions for future cases in civil law systems today. From 529–534 AD the Byzantine Emperor Justinian I codified and consolidated Roman law up until that point, so that what remained was one-twentieth of the mass of legal texts from before.^[59] This became known as the Corpus Juris Civilis. As one legal historian wrote, "Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before."^[60] The Justinian Code remained in force in the East until the fall of the Byzantine Empire. Western Europe, meanwhile, relied on a mix of the Theodosian Code and Germanic customary law until the Justinian Code was rediscovered in the 11th century, and scholars at the University of Bologna used it to interpret their own laws.^[61] Civil law codifications based closely on Roman law, alongside some influences from religious laws such as Canon law, continued to spread throughout Europe until the Enlightenment; then, in the 19th century, both France, with the Code Civil, and Germany, with the Bürgerliches Gesetzbuch, modernised their legal codes. Both these codes influenced heavily not only the law systems of the countries in continental Europe (e.g. Greece), but also the Japanese and Korean legal traditions.^[62][63] Today, countries that have civil law systems range from Russia and China to most of Central and Latin America.^[64] The United States follows the common law system described below.

Common law and equity[link]

King John of England signs Magna Carta

Common law and equity are legal systems where decisions by courts are explicitly acknowledged to be legal sources. The "doctrine of precedent", or stare decisis (Latin for "to stand by decisions") means that decisions by higher courts bind lower courts. Common law systems also rely on statutes, passed by the legislature, but may make less of a systematic attempt to codify their laws than in a "civil law" system. Common law originated from England and has been inherited by almost every country once tied to the British Empire (except Malta, Scotland, the U.S. state of Louisiana, and the Canadian province of Quebec). In medieval England, the Norman conquest led to a unification of various tribal customs and hence a law "common" to the whole country. The common law developed when the English monarchy had been weakened by the enormous cost of fighting for control over large parts of France. King John had been forced by his barons to sign a document limiting his authority to pass laws. This "great charter" or Magna Carta of 1215 also required that the King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country.^[65] A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralised. In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five.^[66] This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law.^[67] As a result, as time went on, increasing numbers of citizens petitioned the King to override the common law, and on the King's behalf the Lord Chancellor gave judgment to do what was equitable in a case. From the time of Sir Thomas More, the first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery. At first, equity was often criticised as erratic, that it varied according to the length of the Chancellor's foot.^[68] But over time it developed solid principles, especially under Lord Eldon.^[69] In the 19th century the two systems were fused into one another. In developing the common law and equity, academic authors have always played an important part. William Blackstone, from around 1760, was the first scholar to describe and teach it.^[70] But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.^[71]

Religious law[link]

Religious law is explicitly based on religious precepts. Examples include the Jewish Halakha and Islamic Sharia—both of which translate as the "path to follow"—while Christian canon law also survives in some church communities. Often the implication of religion for law is unalterability, because the word of God cannot be amended or legislated against by judges or governments. However a thorough and detailed legal system generally requires human elaboration. For instance, the Quran has some law, and it acts as a source of further law through interpretation,^[72] Qiyas (reasoning by analogy), Ijma (consensus) and precedent. This is mainly contained in a body of law and jurisprudence known as Sharia and Fiqh respectively. Another example is the Torah or Old Testament, in the Pentateuch or Five Books of Moses. This contains the basic code of Jewish law, which some Israeli communities choose to use. The Halakha is a code of Jewish law which summarises some of the Talmud's interpretations. Nevertheless, Israeli law allows litigants to use religious laws only if they choose. Canon law is only in use by members of the Catholic Church, the Eastern Orthodox Church and the Anglican Communion.

A trial in the Ottoman Empire, 1879, when religious law applied under the Mecelle

Until the 18th century, Sharia law was practiced throughout the Muslim world in a non-codified form, with the Ottoman Empire's Mecelle code in the 19th century being first attempt at codifying elements of Sharia law. Since the mid-1940s, efforts have been made, in country after country, to bring Sharia law more into line with modern conditions and conceptions.^[73][74] In modern times, the legal systems of many Muslim countries draw upon both civil and common law traditions as well as Islamic law and custom. The constitutions of certain Muslim states, such as Egypt and Afghanistan, recognise Islam as the religion of the state, obliging legislature to adhere to Sharia.^[75] Saudi Arabia recognises Quran as its constitution, and is governed on the basis of Islamic law.^[76] Iran has also witnessed a reiteration of Islamic law into its legal system after 1979.^[77] During the last few decades, one of the fundamental features of the movement of Islamic resurgence has been the call to restore the Sharia, which has generated a vast amount of literature and affected world politics.^[78]

Legal theory[link]

History of law[link]

King Hammurabi is revealed the code of laws by the Mesopotamian sun god Shamash, also revered as the god of justice

The history of law is closely connected to the development of civilization. Ancient Egyptian law, dating as far back as 3000 BC, contained a civil code that was probably broken into twelve books. It was based on the concept of Ma'at, characterised by tradition, rhetorical speech, social equality and impartiality.^[79][80] By the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code, which consisted of casuistic statements ("if ... then ..."). Around 1760 BC, King Hammurabi further developed Babylonian law, by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as stelae, for the entire public to see; this became known as the Codex Hammurabi. The most intact copy of these stelae was discovered in the 19th century by British Assyriologists, and has since been fully transliterated and translated into various languages, including English, German, and French.^[81]

The Old Testament dates back to 1280 BC and takes the form of moral imperatives as recommendations for a good society. The small Greek city-state, ancient Athens, from about the 8th century BC was the first society to be based on broad inclusion of its citizenry, excluding women and the slave class. However, Athens had no legal science or single word for "law",^[82] relying instead on the three-way distinction between divine law (thémis), human decree (nomos) and custom (díkē).^[83] Yet Ancient Greek law contained major constitutional innovations in the development of democracy.^[84]

Roman law was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists and were highly sophisticated.^[85][86] Over the centuries between the rise and decline of the Roman Empire, law was adapted to cope with the changing social situations and underwent major codification under Theodosius II and Justinian I.^[87] Although codes were replaced by custom and case law during the Dark Ages, Roman law was rediscovered around the 11th century when mediæval legal scholars began to research Roman codes and adapt their concepts. In mediæval England, royal courts developed a body of precedent which later became the common law. A Europe-wide Law Merchant was formed so that merchants could trade with common standards of practice rather than with the many splintered facets of local laws. The Law Merchant, a precursor to modern commercial law, emphasised the freedom to contract and alienability of property.^[88] As nationalism grew in the 18th and 19th centuries, the Law Merchant was incorporated into countries' local law under new civil codes. The Napoleonic and German Codes became the most influential. In contrast to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and easy for judges to apply. However, today there are signs that civil and common law are converging.^[89] EU law is codified in treaties, but develops through the precedent laid down by the European Court of Justice.

The Constitution of India is the longest written constitution for a country, containing 444 articles, 12 schedules, numerous amendments and 117,369 words

Ancient India and China represent distinct traditions of law, and have historically had independent schools of legal theory and practice. The Arthashastra, probably compiled around 100 AD (although it contains older material), and the Manusmriti (c. 100–300 AD) were foundational treatises in India, and comprise texts considered authoritative legal guidance.^[90] Manu's central philosophy was tolerance and Pluralism, and was cited across Southeast Asia.^[91] This Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire.^[92] Malaysia, Brunei, Singapore and Hong Kong also adopted the common law. The eastern Asia legal tradition reflects a unique blend of secular and religious influences.^[93] Japan was the first country to begin modernising its legal system along western lines, by importing bits of the French, but mostly the German Civil Code.^[94] This partly reflected Germany's status as a rising power in the late 19th century. Similarly, traditional Chinese law gave way to westernisation towards the final years of the Ch'ing dynasty in the form of six private law codes based mainly on the Japanese model of German law.^[95] Today Taiwanese law retains the closest affinity to the codifications from that period, because of the split between Chiang Kai-shek's nationalists, who fled there, and Mao Zedong's communists who won control of the mainland in 1949. The current legal infrastructure in the People's Republic of China was heavily influenced by Soviet Socialist law, which essentially inflates administrative law at the expense of private law rights.^[96] Due to rapid industrialisation, today China is undergoing a process of reform, at least in terms of economic, if not social and political, rights. A new contract code in 1999 represented a move away from administrative domination.^[97] Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organisation.^[98]

Philosophy of law[link]

The philosophy of law is commonly known as jurisprudence. Normative jurisprudence is essentially political philosophy, and asks "what should law be?", while analytic jurisprudence asks "what is law?". John Austin's utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience".^[100] Natural lawyers on the other side, such as Jean-Jacques Rousseau, argue that law reflects essentially moral and unchangeable laws of nature. The concept of "natural law" emerged in ancient Greek philosophy concurrently and in entanglement with the notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas.

Hugo Grotius, the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse—as Aristotle had indicated—and reason.^[101] Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature".^[102] Jeremy Bentham and his student Austin, following David Hume, believed that this conflated the "is" and what "ought to be" problem. Bentham and Austin argued for law's positivism; that real law is entirely separate from "morality".^[103] Kant was also criticised by Friedrich Nietzsche, who rejected the principle of equality, and believed that law emanates from the will to power, and cannot be labelled as "moral" or "immoral".^{[104][105][106]}

In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law.^[107] Kelsen believed that although law is separate from morality, it is endowed with "normativity"; meaning we ought to obey it. While laws are positive "is" statements (e.g. the fine for reversing on a highway is €500); law tells us what we "should" do. Thus, each legal system can be hypothesised to have a basic norm (Grundnorm) instructing us to obey. Kelsen's major opponent, Carl Schmitt, rejected both positivism and the idea of the rule of law because he did not accept the primacy of abstract normative principles over concrete political positions and decisions.^[108] Therefore, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could encompass of all political experience.^[109]

Bentham's utilitarian theories remained dominant in law until the 20th century

Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fictions in The Concept of Law.^[110] Hart argued law is a system of rules, divided into primary (rules of conduct) and secondary ones (rules addressed to officials to administer primary rules). Secondary rules are further divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). Two of Hart's students continued the debate: In his book Law's Empire, Ronald Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an "interpretive concept",^[111] that requires judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions. Joseph Raz, on the other hand, defended the positivist outlook and criticised Hart's "soft social thesis" approach in The Authority of Law.^[112] Raz argues that law is authority, identifiable purely through social sources and without reference to moral reasoning. In his view, any categorisation of rules beyond their role as authoritative instruments in mediation are best left to sociology, rather than jurisprudence.^[113]

Economic analysis of law[link]

In the 18th century Adam Smith presented a philosophical foundation for explaining the relationship between law and economics.^[114] The discipline arose partly out of a critique of trade unions and U.S. antitrust law. The most influential proponents, such as Richard Posner and Oliver Williamson and the so-called Chicago School of economists and lawyers including Milton Friedman and Gary Becker, are generally advocates of deregulation and privatisation, and are hostile to state regulation or what they see as restrictions on the operation of free markets.^[115]

Richard Posner, one of the Chicago School, runs a blog with Bank of Sweden Prize winning economist Gary Becker.^[116]

The most prominent economic analyst of law is 1991 Nobel Prize winner Ronald Coase, whose first major article, The Nature of the Firm (1937), argued that the reason for the existence of firms (companies, partnerships, etc.) is the existence of transaction costs.^[117] Rational individuals trade through bilateral contracts on open markets until the costs of transactions mean that using corporations to produce things is more cost-effective. His second major article, The Problem of Social Cost (1960), argued that if we lived in a world without transaction costs, people would bargain with one another to create the same allocation of resources, regardless of the way a court might rule in property disputes.^[118] Coase used the example of a nuisance case named Sturges v Bridgman, where a noisy sweetmaker and a quiet doctor were neighbours and went to court to see who should have to move.^[38] Coase said that regardless of whether the judge ruled that the sweetmaker had to stop using his machinery, or that the doctor had to put up with it, they could strike a mutually beneficial bargain about who moves house that reaches the same outcome of resource distribution. Only the existence of transaction costs may prevent this.^[119] So the law ought to pre-empt what would happen, and be guided by the most efficient solution. The idea is that law and regulation are not as important or effective at helping people as lawyers and government planners believe.^[120] Coase and others like him wanted a change of approach, to put the burden of proof for positive effects on a government that was intervening in the market, by analysing the costs of action.^[121]

Sociology of law[link]

Sociology of law is a diverse field of study that examines the interaction of law with society and overlaps with jurisprudence, economic analysis of law and more specialised subjects such as criminology.^[122] The institutions of social construction and legal frameworks are the relevant areas for the discipline's inquiry. At first, legal theorists were suspicious of the discipline. Kelsen attacked one of its founders, Eugen Ehrlich, who sought to make distinct the differences between positive law, which lawyers learn and apply, and other forms of 'law' or social norms that regulate everyday life, generally preventing conflicts from reaching lawyers and courts.^[123][124]

Max Weber in 1917, Weber began his career as a lawyer, and is regarded as one of the founders of sociology and sociology of law

Around 1900 Max Weber defined his "scientific" approach to law, identifying the "legal rational form" as a type of domination, not attributable to people but to abstract norms.^[125] Legal rationalism was his term for a body of coherent and calculable law which formed a precondition for modern political developments and the modern bureaucratic state and developed in parallel with the growth of capitalism.^[122] Another sociologist, Émile Durkheim, wrote in The Division of Labour in Society that as society becomes more complex, the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions.^[126] Other notable early legal sociologists included Hugo Sinzheimer, Theodor Geiger, Georges Gurvitch and Leon Petrażycki in Europe, and William Graham Sumner in the U.S.^[127][128]

Legal institutions[link]

The main institutions of law in industrialised countries are independent courts, representative parliaments, an accountable executive, the military and police, bureaucratic organisation, the legal profession and civil society itself. John Locke, in his Two Treatises of Government, and Baron de Montesquieu in The Spirit of the Laws, advocated for a separation of powers between the political, legislature and executive bodies.^[129] Their principle was that no person should be able to usurp all powers of the state, in contrast to the absolutist theory of Thomas Hobbes' Leviathan.^[130]

Max Weber and others reshaped thinking on the extension of state. Modern military, policing and bureaucratic power over ordinary citizens' daily lives pose special problems for accountability that earlier writers such as Locke or Montesquieu could not have foreseen. The custom and practice of the legal profession is an important part of people's access to justice, whilst civil society is a term used to refer to the social institutions, communities and partnerships that form law's political basis.

Judiciary[link]

A judiciary is a number of judges mediating disputes to determine outcome. Most countries have systems of appeal courts, answering up to a supreme legal authority. In the United States, this is the Supreme Court;^[131] in Australia, the High Court; in the UK, the Supreme Court;^[132] in Germany, the Bundesverfassungsgericht; in France, the Cour de Cassation.^[133][134] For most European countries the European Court of Justice in Luxembourg can overrule national law, when EU law is relevant. The European Court of Human Rights in Strasbourg allows citizens of the Council of Europe member states to bring cases relating to human rights issues before it.^[135]

Some countries allow their highest judicial authority to overrule legislation they determine to be unconstitutional. For example, in Brown v. Board of Education, the United States Supreme Court nullified many state statutes that had established racially segregated schools, finding such statutes to be incompatible with the Fourteenth Amendment to the United States Constitution.^[136]

A judiciary is theoretically bound by the constitution, just as all other government bodies are. In most countries judges may only interpret the constitution and all other laws. But in common law countries, where matters are not constitutional, the judiciary may also create law under the doctrine of precedent. The UK, Finland and New Zealand assert the ideal of parliamentary sovereignty, whereby the unelected judiciary may not overturn law passed by a democratic legislature.^[137]

In communist states, such as China, the courts are often regarded as parts of the executive, or subservient to the legislature; governmental institutions and actors exert thus various forms of influence on the judiciary.^[138] In Muslim countries, courts often examine whether state laws adhere to the Sharia: the Supreme Constitutional Court of Egypt may invalidate such laws,^[139] and in Iran the Guardian Council ensures the compatibility of the legislation with the "criteria of Islam".^[139][140]

Legislature[link]

The debating chamber of the European Parliament

Prominent examples of legislatures are the Houses of Parliament in London, the Congress in Washington D.C., the Bundestag in Berlin, the Duma in Moscow, the Parlamento Italiano in Rome and the Assemblée nationale in Paris. By the principle of representative government people vote for politicians to carry out their wishes. Although countries like Israel, Greece, Sweden and China are unicameral, most countries are bicameral, meaning they have two separately appointed legislative houses.^[141]

In the 'lower house' politicians are elected to represent smaller constituencies. The 'upper house' is usually elected to represent states in a federal system (as in Australia, Germany or the United States) or different voting configuration in a unitary system (as in France). In the UK the upper house is appointed by the government as a house of review. One criticism of bicameral systems with two elected chambers is that the upper and lower houses may simply mirror one another. The traditional justification of bicameralism is that an upper chamber acts as a house of review. This can minimise arbitrariness and injustice in governmental action.^[142]

To pass legislation, a majority of the members of a legislature must vote for a bill (proposed law) in each house. Normally there will be several readings and amendments proposed by the different political factions. If a country has an entrenched constitution, a special majority for changes to the constitution may be required, making changes to the law more difficult. A government usually leads the process, which can be formed from Members of Parliament (e.g. the UK or Germany). However, in a presidential system, the government is usually formed by an executive and his or her appointed cabinet officials (e.g. the United States or Brazil).^[143]

Executive[link]

The G20 meetings are composed of representatives of each country's executive branch

The executive in a legal system serves as a government's centre of political authority. In a parliamentary system, as with Britain, Italy, Germany, India, and Japan, the executive is known as the cabinet, and composed of members of the legislature. The executive is chosen by the Prime Minister or Chancellor, whose office holds power under the confidence of the legislature. Because popular elections appoint political parties to govern, the leader of a party can change in between elections.^[144]

The head of state is apart from the executive, and symbolically enacts laws and acts as representative of the nation. Examples include the German president (appointed by members of federal and state Parliaments) the Queen of the United Kingdom (a hereditary title), and the Austrian president (elected by popular vote). The other important model is the presidential system, found in France, the U.S. and Russia. In presidential systems, the executive acts as both head of state and head of government, and has power to appoint an unelected cabinet. Under a presidential system, the executive branch is separate from the legislature to which it is not accountable.^[145][146]

Although the role of the executive varies from country to country, usually it will propose the majority of legislation, and propose government agenda. In presidential systems, the executive often has the power to veto legislation. Most executives in both systems are responsible for foreign relations, the military and police, and the bureaucracy. Ministers or other officials head a country's public offices, such as a foreign ministry or interior ministry. The election of a different executive is therefore capable of revolutionising an entire country's approach to government.

Military and police[link]

U.S. Customs and Border Protection officers

While military organizations have existed as long as government itself, the idea of a standing police force is relatively modern concept. For example, Mediæval England's system of traveling criminal courts, or assizes, used show trials and public executions to instill communities with fear to maintain control.^[147] The first modern police were probably those in 17th-century Paris, in the court of Louis XIV,^[148] although the Paris Prefecture of Police claim they were the world's first uniformed policemen.^[149]

Max Weber famously argued that the state is that which controls the monopoly on the legitimate use of force.^[150][151] The military and police carry out enforcement at the request of the government or the courts. The term failed state refers to states that cannot implement or enforce policies; their police and military no longer control security and order and society moves into anarchy, the absence of government.^[152]

Bureaucracy[link]

The United Nations' New York headquarters houses civil servants that serve its 192 member states.

The etymology of "bureaucracy" derives from the French word for "office" (bureau) and the Ancient Greek for word "power" (kratos).^[153] Like the military and police, a legal system's government servants and bodies that make up its bureaucracy carry out the directives of the executive. One of the earliest references to the concept was made by Baron de Grimm, a German author who lived in France. In 1765 he wrote,

The real spirit of the laws in France is that bureaucracy of which the late Monsieur de Gournay used to complain so greatly; here the offices, clerks, secretaries, inspectors and intendants are not appointed to benefit the public interest, indeed the public interest appears to have been established so that offices might exist.^[154]

Cynicism over "officialdom" is still common, and the workings of public servants is typically contrasted to private enterprise motivated by profit.^[155] In fact private companies, especially large ones, also have bureaucracies.^[156] Negative perceptions of "red tape" aside, public services such as schooling, health care, policing or public transport are a crucial state function making public bureaucratic action the locus of government power.^[156]

Writing in the early 20th century, Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support.^[157] Weber wrote that the typical characteristics of modern bureaucracy are that officials define its mission, the scope of work is bound by rules, management is composed of career experts, who manage top down, communicating through writing and binding public servants' discretion with rules.^[158]

Legal profession[link]

In civil law systems such as those of France, Germany, Italy, Spain and Greece, there is a distinct category of notary, a legally trained public official, compensated by the parties to a transaction.^[159] This is a 16th-century painting of such a notary by Flemish painter Quentin Massys.

A corollary of the rule of law is the existence of a legal profession sufficiently autonomous to be able to invoke the authority of the independent judiciary; the right to assistance of an advocate in a court proceeding emanates from this corollary—in England the function of barrister or advocate is distinguished from legal counselor (solicitor).^[160] As the European Court of Human Rights has stated, the law should be adequately accessible to everyone and people should be able to foresee how the law affects them.^[161]

In order to maintain professionalism, the practice of law is typically overseen by either a government or independent regulating body such as a bar association, bar council or law society. Modern lawyers achieve distinct professional identity through specified legal procedures (e.g. successfully passing a qualifying examination), are required by law to have a special qualification (a legal education earning the student a Bachelor of Laws, a Bachelor of Civil Law or a Juris Doctor degree^[162]), and are constituted in office by legal forms of appointment (being admitted to the bar). Most Muslim countries have developed similar rules about legal education and the legal profession, but some still allow lawyers with training in traditional Islamic law to practice law before personal status law courts.^[163] In China and other developing countries there are not sufficient professionally-trained people to staff the existing judicial systems, and, accordingly, formal standards are more relaxed.^[164]

Once accredited, a lawyer will often work in a law firm, in a chambers as a sole practitioner, in a government post or in a private corporation as an internal counsel. In addition a lawyer may become a legal researcher who provides on-demand legal research through a library, a commercial service or through freelance work. Many people trained in law put their skills to use outside the legal field entirely.^[165]

Significant to the practice of law in the common law tradition is the legal research to determine the current state of the law. This usually entails exploring case-law reports, legal periodicals and legislation. Law practice also involves drafting documents such as court pleadings, persuasive briefs, contracts, or wills and trusts. Negotiation and dispute resolution skills (including ADR techniques) are also important to legal practice, depending on the field.^[166]

Civil society[link]

A march in Washington D.C. during the U.S. Civil Rights Movement in 1963

Classical republican concept of "civil society" dates back to Hobbes and Locke.^[167] Locke saw civil society as people who have "a common established law and judicature to appeal to, with authority to decide controversies between them."^[168] German philosopher Georg Wilhelm Friedrich Hegel distinguished the "state" from "civil society" (burgerliche Gesellschaft) in Elements of the Philosophy of Right.^[169]

Hegel believed that civil society and the state were polar opposites, within the scheme of his dialectic theory of history. The modern dipole state–civil society was reproduced in the theories of Alexis de Tocqueville and Karl Marx.^[170][171] Nowadays in post-modern theory civil society is necessarily a source of law, by being the basis from which people form opinions and lobby for what they believe law should be. As Australian barrister and author Geoffrey Robertson QC wrote of international law,

... one of its primary modern sources is found in the responses of ordinary men and women, and of the non-governmental organizations which many of them support, to the human rights abuses they see on the television screen in their living rooms.^[172]

Freedom of speech, freedom of association and many other individual rights allow people to gather, discuss, criticise and hold to account their governments, from which the basis of a deliberative democracy is formed. The more people are involved with, concerned by and capable of changing how political power is exercised over their lives, the more acceptable and legitimate the law becomes to the people. The most familiar institutions of civil society include economic markets, profit-oriented firms, families, trade unions, hospitals, universities, schools, charities, debating clubs, non-governmental organisations, neighbourhoods, churches, and religious associations.^[173]

See also[link]

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Notes[link]