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From Wikipedia, the free encyclopedia

Balancing scales are symbolic of how law mediates people's interests
Balancing scales are symbolic of how law mediates people's interests

Law comes into almost every area of life. There are laws about how people work with one another, how we trade and how we own things. Laws can enable people to run a business and laws can restrict how businesses are run. Laws create and regulate schools, hospitals and public utilities. Laws can remove people from society for their crimes, laws can create bridges between different societies and there are laws about elections for who represents society. There are even laws about how to make laws. "The rule of law," wrote the philosopher Aristotle in 350BC, "is better than the rule of any individual."[4][1]

The study of law raises important questions about equality, fairness and justice. In most countries professionals are trained in the law to give people advice about their legal rights and duties and represent them in court. Legal rights and duties can be, and often are complicated. But there is a rich history to law, with deep philosophical ideas underpinning it. Intense political battles are fought to create law and pressing economic issues are raised by it. Despite the complexity, law proves highly rewarding. The word law derives from the late Old English lagu, meaning something laid down or fixed. Lagu comes from the ancient Roman lex, legem, legis. [5] [2]

Legal subjects

Law is usually learned in different subjects. For example, in England, knowledge of seven core subjects is required to practice law. These are criminal law, contract, tort, property law, equity and trusts, constitutional and administrative law and European Community Law. All legal systems deal with the same issues, although different names may be given. For instance in civil law systems contract and tort would fall under a general law of obligations and trusts law is dealt with under statutory regimes or international conventions. Outside Europe international law may focus on different regional agreements, such as NAFTA, SAFTA CSN, ASEAN or the African Union. But it is the unity and the things that all legal systems have in common, not the differences, that is the most remarkable feature of law in today's world.

Criminal law

Main article: Criminal law
 London's Newgate Prison in 1896
London's Newgate Prison in 1896

Criminal law is the most familiar kind of law that we hear about from the papers, or news on TV, despite its relatively small part in the legal whole. A crime is committed, when somebody has both the mens rea (guilty mind) and commits an actus reus (guilty act). If somebody maliciously intends to harm another, that is the mens rea. An actus reus simply means hurting a person or their belongings. There can be many different kinds of crime, from murder, to assault, to fraud, to theft.

In some areas, criminal law is moving towards strict liability for some types of harm. In the case of environmental harm, or corporate manslaughter, where big businesses are controlled by an individually culprit, criminal sanctions can still be used. Some industrialised countries still have capital punishment and torture for criminal activity, but the normal punishment for a crime will be imprisonment, fines, or community service. On the international field, most developed countries have signed up to the International Criminal Court, which was set up to try people for crimes against humanity.


Main article: Contract
The Carbolic Smoke Ball offer, which bankrupted the Co. because it could not fulfill the terms it advertised
The Carbolic Smoke Ball offer, which bankrupted the Co. because it could not fulfill the terms it advertised

Contract is based on the Latin phrase pacta sunt servanda (literally, promises must be kept). Almost everyone makes contracts everyday. Contracts can be made orally, like buying a newspaper, or in writing, like signing a contract of employment. Sometimes formalities, like writing, are required to create a contract, like buying a house[3].

In common law jurisdictions there are three key elements to the creation of a contract. These are offer and acceptance, consideration and an intention to create legal relations. For example, in Carlill v. Carbolic Smoke Ball Company [4] a medical firm advertised that its new wonder drug, the smokeball, would cure people's flu, and if it did not, buyers would get £100. Lots of people sued for their £100 when it did not work. Fearing bankruptcy, Carbolic argued the advert was not to be taken as a serious, legally binding offer. It was merely an invitation to treat, or 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".

In civil law jurisdictions, consideration is not necessarily a requirement for a contract[5]. The rule means all parties to a contract must exchange something of value to be able to enforce it. In France, for instance, an ordinary contract is said to form simply on the basis of a 'meeting of the minds' or a 'concurrence of wills'. Yet in some common law systems, like Australia, the concept of culpa in contrahendo or estoppel is increasingly used to create obligations during pre-contractual negotiations[6]. 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 to the title of property being conferred. When contracts are invalidated for some reason, e.g. a car buyer was so drunk that he lacked legal capacity to contract[7], the contractual obligation to pay can be invalidated separate from proprietary title of the car. Unjust enrichment law, rather than the law of contract, is then used to restore title to the rightful owner.


Main article: Tort
The owner could sue the person who wrecked this car in tort
The owner could sue the person who wrecked this car in tort

Tort means 'civil wrong'. In order to have behaved 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[8]. In the law of negligence, the injured party has a claim. Another example might be a neighbour making excessively loud noises with machinery on his property[9]. You could have a claim under the law of nuisance. Torts can also involve intentional acts, such as assault, battery or trespass. Of the more infamous torts are defamation, for example when a newspaper libels a politician[10] or economic torts, which form the basis of labour law in attacks upon trade unions[11].

Donoghue v. Stevenson[12] illustrates the principles of the modern tort of negligence. Mrs Donoghue ordered an opaque bottle of ginger beer in a cafe in Paisley. Having consumed half of it, she poured the remainder into a tumbler. The decomposing remains of a dead snail floated out. She fell ill and sued the manufacturer for carelessly allowing the drink to be contaminated. The House of Lords decided the manufacturer liable in negligence for Mrs Donoghue's illness, because he fulfilled the four criteria. The manufacturer was liable to Mrs Donoghue, because (1) he owed Mrs. Donoghue a duty of care, (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 of her harm.

Property law

Main article: Property law
This house is somebody's 'real property' or right in rem
This house is somebody's 'real property' or right in rem

Property law governs everything that people call 'theirs'. Real property, sometimes called 'real estate' or a right in rem refers to ownership of land and things attached to it.[13] Personal property, or a right in personam refers to everything else, movable objects, like computers or sandwiches or intangible rights, like company shares or a copyright on a song. The classic civil law approach to property, propounded by Friedrich Carl von Savigny is that it is a right good against the world. This contrasts to an obligation, like a contract or tort, which is a right good between individuals.[14] Preferred in common law jurisdictions is an idea closer to an obligation; that the person who can show the best claim to a piece of property, against any contesting party, is the owner.[15] The idea of property also raises important philosophical and political issues. John Locke famously argued that our 'lives, liberties and estates' are our property because we own our bodies and mix our labour with our surroundings.[16] Many thinkers have criticised property since. Pierre Proudhon most famously proclaimed, 'property is theft'.

Regulations on the use of personal property fall under intellectual property, company law, trusts and so on. Land law is the basis for most kinds of property law and concerns mortgages, rental agreements, licences, convenants, easements and the statutory systems for registration of land.

Trusts and equity

Main articles: Trust law and Equity
Manhattan headquarters of Investment Bank Citigroup
Manhattan headquarters of Investment Bank Citigroup

The trust is a form of ownership that developed in England through the courts of Chancery. It is part of a body of law known as 'equity'. In a trust, the legal ownership of property split. So called 'trustees' control the property, whereas the 'beneficial' (or 'equitable') ownership of the trust property is held by people known as 'beneficiaries'. Trusts are used mostly for holding large amounts of money. The most familiar kind of trust is a pension fund, where people's savings are stored until their retirement. Most big investment banks deal in trust property. Company law is historically based on the trust instrument. But trusts can also be set up for charitable purposes, famous examples being the British Museum or the Rockefeller Foundation.

Trustees owe things called 'equitable duties' to the beneficiaries who they hold trust property for. They must use the trust property for the benefit of the beneficiaries, rather than for themselves. Depending on the particular trust law of the jurisdiction, the nature of the trust property and the terms of the instrument that created the trust, the trustees will usually be expected to invest it or sell it, allow the beneficiaries to reside in it, or to transfer it to the beneficiaries absolutely.

Constitutional and administrative law

Main articles: Constitutional law and Administrative law
The U.S. Supreme Court and the US President
The U.S. Supreme Court and the US President

Constitutional and administrative law govern the affairs of the state. Administrative law covers the law relating to the administrative activities of government such as the making, adjudication, and enforcement of regulations. Judicial review of state apparatus, from local councils to Government Ministries is the chief method for the judiciary to hold the executive to account.

Constitutional law governs the relationships between the executive, legislature and judiciary. Human rights or civil liberties also form part of a country's constitution and govern the rights of the individual against the state. Most jurisdictions, like the United States and France, have a single codified constitution, with a Bill of Rights. A few, like the United Kingdom, have no such document; in those jurisdictions the constitution is composed of statute, case law and convention. A case named Entick v. Carrington[17] illustrates a constitutional principle deriving from the common law. Mr Entick's house was searched and ransacked by Sherrif Carrington. Carrington argued that a warrant from a Government minister, the Earl of Halifax was valid authority, even though there was no statutory provision or court order for it. The court, led by 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. By the laws of England, every invasion of private property, be it ever so minute, is a trespass... 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."

Inspired by John Locke[18], the fundamental constitutional principle is that the individual can do anything but that which is forbidden by law, while the state may do nothing but that which is authorised by law.

International law

Main articles: Public international law, Conflict of laws, and European Union law
Providing a constitution for public international law, the United Nations was conceived during World War II
Providing a constitution for public international law, the United Nations was conceived during World War II

In a global economy, law is globalising too. International law can refer to three things, public international law, private international law or conflict of laws and the law of supranational organizations.

  • Public international law concerns the relationships between sovereign nations. The United Nations, founded under the UN Charter and the Universal Declaration of Human Rights is the most important international organisation. It was established after the failure of the Versailles Treaty and World War II. Other international agreements, like the Geneva Conventions on the conduct of war and international bodies such as the International Labour Organisation, the World Trade Organisation, or the International Monetary Fund also form a growing part of public international law.
  • Conflict of Laws (or private international law in civil law jurisdictions) is less international than national law. It concerns which jurisdiction a legal dispute between private parties should be heard. Today businesses are increasingly capable of shifting capital and labour supply chains across borders, as well as trading with overseas businesses. This increases the number of disputes outside a unified legal framework and the enforceability of standard practices. Increasing numbers of businesses use commercial arbitration under the New York Convention 1958.
  • The European Union is the first and only example (so far) of a supra-national legal framework, where sovereign nations have pooled their authority through a system of courts and political institutions. It constitutes a new legal order in international law[6] [19] for the mutual social and economic benefit of the member states.

Further disciplines

Law spreads far beyond the core subjects, into practically every area of life. Three categories are presented for convenience, though the subjects intertwine and flow into one another. Moreover these subjects may be of even greater practical importance than the traditional core subjects. The best way to grasp their importance is careful individual study.

Law and Commerce
The New York Stock Exchange trading floor
The New York Stock Exchange trading floor
  • Commercial law is essentially complicated contract law. It deals with the Sale of Goods Acts and codified common law of commercial principles.
  • Company law sprung from the law of trusts, on the principle of separating ownership and control[20] developed with the birth of the British East India Company. The first Joint Stock Companies Act was passed in the United Kingdom in 1865, protecting investors with limited liability and conferring separate legal personality.
  • Intellectual property deals with patents, trademarks and copyrights. These are intangible assets, like the right not to have your idea for an invention stolen, a brand name or a song you have written.
  • Unjust enrichment is law covering a right to retrieve property from someone that has profited unjustly at your expense.
Law and Regulation
Filling out forms is often part of regulation
Filling out forms is often part of regulation
  • Tax law is probably the most complicated and well paid discipline, involving Value Added Tax, Corporation Tax, Income Tax, and most importantly, lots of money.
  • 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.
  • Regulated industries are attached to an important body of law for the provision of public services. Since privatization became popular, private companies doing the jobs previously controlled by government have been bound by social responsibilities. Utilities, Telecomms and Water are regulated industries in most OECD countries.
  • Competition law is an evolving and relatively new kind of law that began in the late 19th Century with the restraint of trade doctrine. The U.S. adopted anti-cartel and anti-monopoly statutes around the turn of that century. See the Sherman Act and Clayton Act.
  • Consumer Law could include anything from regulations on unfair contract terms and conditions, or directives on airline baggage insurance.
  • Environmental law is increasingly important, especially in light of the Kyoto Protocol and the imminent danger of climate change. Environmental protection also serves to penalise polluters within countries.
Law and Society
A trade union protest by UNISON while on strike
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 to not be discriminated against, including unfair dismissal law or the right to a minimum wage.
  • Human rights is an important field to guarantee everyone basic freedoms and entitlements. These are laid down in codes such as the U.N. Charter, the European convention on human rights and the U.S. Bill of Rights.
  • Immigration law and citizenship rights concern the rights of foreigners to live and work in a nation state that is not their own. It also involves rights 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 of course the rights to property and money in the event of separation.
  • Evidence and procedural law involve which materials are admissible in courts for a case to be built and the rules that courts must follow as a trial and appeals proceed.

Legal systems

The King Hammurabi is revealed the code of laws by God
The King Hammurabi is revealed the code of laws by God
See also: Legal systems of the world

There is a general western distinction between civil law on the one hand and on the other, common law and equity systems. Some parts of countries and even whole countries still accept religious law, based on Biblical transcripts.

Civil law

Main article: Civil Law

Civil Law implies a codification of laws by Parliaments or the State, and today most civil law derives from the Roman Empire. Civil law is, in theory, interpreted, not made, by judges. Only legislative enactments (rather than judicial precedent) are considered legally binding, but in reality courts do pay attention to previous decisions. Most countries have civil law systems, including France, Germany, Russia, Japan, China and most of central and Latin America.

Common law and equity

Main article: Common law
King John of England signs the Magna Carta
King John of England signs the Magna Carta

English Law is the father of common law and equity, and is used in Commonwealth countries or former countries from the British Empire. The doctrine of stare decisis or precedent by courts is the major innovation and difference to codified civil law systems. Common law is currently in practice in Ireland, United Kingdom, Australia, New Zealand, South Africa, Canada (excluding Quebec), and the United States. In addition to these countries, several others have adapted the common law system into a mixed system. For example, Pakistan, India and Nigeria operate largely on a common law system, but incorporate religious law. In the European Union the Court of Justice takes an approach mixing civil law (based on the treaties) with an attachment to the importance of case law. One of the most fundamental documents to shape common law is the Magna Carta[7] which placed limits on the power of the English Kings. It served as a kind of mediaeval bill of rights for the aristocracy and the judiciary who developed the law.

Religious law

Main article: Religious law
Aleppo Codex: 10th century Hebrew Bible with Masoretic pointing
Aleppo Codex: 10th century Hebrew Bible with Masoretic pointing

The main kinds of religious law are Halakha in Judaism, Sharia in Islam, and Canon law in some Christian groups. In some cases these are intended purely as individual moral guidance, whereas in other cases they are intended and may be used as the basis for a country's legal system. The Halakha is followed by orthodox and conservative Jews in both ecclesiastical and civil relations. No country is fully governed by Halakha, but two Jewish people may decide, because of personal belief, to have a dispute heard by a Jewish court, and be bound by its rulings. Sharia Law governs a number of Islamic countries, including Saudi Arabia and Iran, though most countries use Sharia Law only as a supplement to national law. It can relate to all aspects of civil law, including property rights, contracts or public law. Canon law survives in use by the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion.

Legal theory

History of law

Main article: Legal history

The history of law is, in a broad sense begins with the history of human civilization. Almost every legal system is interconnected in some way, each body of law being influenced by outside forces and jurisdictions over time.

Ancient law
Ancient Athens had the first quasi-democratic constitution
Ancient Athens had the first quasi-democratic constitution
  • In ancient Babylon, the King Hammurabi made the innovation of publishing his code of laws for the public to see in the market. This became known as the Codex Hammurabi, part of a vast and complex body of babylonian law
  • Egyptian law used a civil code, based on the concept of Ma'at. Tradition, rhetorical speech, social equality and impartiality were key principles.[8][21] Judges kept records, which was used as precedent, although the systems developed slowly.
  • The Noahide Laws were moral imperatives for forming a foundation for a well-functioning unified society. They were eventually succeeded by the The Ten Commandments or the Torah, Mishna, Talmud and Responsa.
  • In Ancient Athens, the small Greek city-state developed the first government based on broad inclusive of the citizenry, excluding women and the slave class. Ancient greek law contained major constitutional innovations in the development of democracy.
European law
First page of the 1804 edition of the Napoleonic Code
First page of the 1804 edition of the Napoleonic Code

Roman law underwent major codification in the Corpus Juris Civilis of Emperor Justinian, as later developed through the Middle Ages by mediæval legal scholars. In Mediaeval England, judges retained greater power than their continental counterparts and began to develop a body of precedent. Originally civil law was one common legal system in much of Europe, but with the rise of nationalism in the 17th century Nordic countries and around the time of the French Revolution, it became fractured into separate national systems. This change was brought about by the development of separate national codes, of which the French Napoleonic Code and the German and Swiss codes were the most influential. Around this time civil law incorporated many ideas associated with the Enlightenment. The European Union's Law is based on a codified set of laws, laid down in the Treaties. Law in the EU is however mixed with precedent in case law of the European Court of Justice.

Asian law
The preamble of the Constitution of India
The preamble of the Constitution of India

Ancient China and ancient India had historically independent schools of legal theory and practice such as the Laws of Manu or the Arthashastra in India and traditional Chinese law in China. Because Germany was a rising power in the late 19th century, and because civil law codifications are more 'exportable' the large bodies of common law jurisprudence, the German Civil Code has been highly influential for most oriental legal systems, and forms the basis of civil law in Japan and South Korea. In China, the German Civil Code was introduced in the later years of the Qing Dynasty and formed the basis of the law of the Republic of China which remains in force in Taiwan. The current legal infrastructure in the People's Republic of China reflects influences from the German-based civil law, English-based common law in Hong Kong, Soviet-influenced Socialist law, United States-style banking and securities law, and traditional Chinese law. In India, and other previous members of the Commonwealth, English common law forms the basis of private law.

Philosophy of law

Main article: Jurisprudence
Bentham's utilitarian theories remained dominant in law till the twentieth century
Bentham's utilitarian theories remained dominant in law till the twentieth century

The philosophy of law is known as jurisprudence. Normative jurisprudence is essentially political philosophy and asks "what should law be?". Analytic jurisprudence asks on the other hand, "what is law?". This was revived as an important theoretical debate in the twentieth century by H.L.A. Hart in his book The Concept of Law [22]. As the chair of jurisprudence at Oxford University, Hart argued law is a 'system of rules'. Rules, said Hart, are divided into primary rules (rules of conduct) and secondary rules (rules addressed to officials to administer primary rules). Secondary rules are 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).

Hart's focus of attack was John Austin, a student of Jeremy Bentham and first chair of law at the new University of London from 1829. 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'[23]. This was attacked by Hart for its simplicity, and its failure to account for people's internal commitment to law. Nevertheless Hart and Austin belonged to the tradition of legal positivism, which argues that morality is separate, or merely contingent to what makes law valid.

Dworkin is today's leading 'anti-positivist' thinker
Dworkin is today's leading 'anti-positivist' thinker

The sociologist Max Weber took a wider view by identifying legal-rational form as a type of domination, not to people but to abstract norms.[24] Weber held that legal positions contain the basis of their own legitimacy, and related to that, the nation state is defined as that which has the legitimate monopoly on the use of force.[25]

Two of Hart's students have continued the debate since. Ronald Dworkin was his successor in the Chair of Jurisprudence at Oxford and his greatest critic. In his book 'Law's Empire'[26] Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an 'interpretive' concept, 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 has defended the positivist outlook and even criticised Hart's 'soft social thesis' approach in The Authority of Law[27]. Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorisation of rules beyond their role as authoritative is best left to sociology, rather than jurisprudence. [28]

See also: Political philosophy

Economic analysis of law

Main article: Economic analysis of law
Posner worked as a judge, an economist, an academic and even runs a blog[3]
Posner worked as a judge, an economist, an academic and even runs a blog[3]

Economic analysis of law is an approach to legal theory that incorporates and applies the methods and ideas of economics to the concepts of law. The discipline arose partly out of a critique of trade unions and U.S. Antitrust Law. Today's proponents, such as Richard Posner from the so called Chicago School of economists and lawyers, are generally advocates of deregulation, privatization, and are hostile to state regulation, or what they see as restrictions on the operation of free markets.

The most decorated economic analyst of law is 1991 Nobel Prize winner Ronald Coase. His first major article, The Nature of the Firm (1937)[29], argued that the reason for the existence of firms (companies, partnerships, etc) is the existence of transaction costs. Rational individuals trade through bilateral contracts on open markets until the costs of transactions mean corporate forms are most cost effective. His second major article, The Problem of Social Cost (1960)[30] [9] 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. Coase used the example of a nuisance case named Sturges v. Bridgman[31], where a noisy sweetmaker and a quiet doctor were neighbours and went to court to see who should have to move. 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 prevents this. 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, is not as important or effective at helping people as lawyers, and government planners, believe.

Financing has a significant effect on the way legal care is delivered and has a great influence as it defines who pays the costs. Aside from tribal cultures, the most significant divide in many countries is between universal legal care and market-based legal care (such as practiced in the U.S.). Universal legal care might allow or ban a parallel private market. The latter is described as single-payor system.

Legal institutions

The main institutions of law in industrialised countries are independent courts, representative parliaments, the military and police, bureaucratic organisation, the profession of lawyers and civil society itself. John Locke in Two Treatises On Civil Government and Charles de Secondat, Baron de Montesquieu after him in Spirit of Laws advocated a separation of powers between the institutions that wield political influence, on the principle that no person should be able to claim, as Thomas Hobbes wanted, a Leviathan of power. Karl Marx and Max Weber have been pivotal in shaping thinking in the twentieth century about the extensions of the state.


Main article: Judiciary
A trial at the Old Bailey in London as drawn by Thomas Rowlandson and Augustus Pugin (1808-11).
A trial at the Old Bailey in London as drawn by Thomas Rowlandson and Augustus Pugin (1808-11).

Most countries have a system of appeals courts, up to a supreme authority. In the U.S. this would be the Supreme Court[10], in Australia the High Court. In the U.K. the highest court is the House of Lords[11], but on questions of European Community Law or Human Rights Law, the European Court of Justice[12] in Luxembourg and the European Court of Human Rights in Strasbourg are the E.U. authorities. Also in the E.U. is the German Bundesverfassungsgericht[13] and the French Cour de Cassation. Some courts are bound by constitutions and may interpret them, whilst the UK continues to assert the ideal of parliamentary sovereignty, whereby the elected legislature holds power.


Main article: Legislature
The British Houses of Parliament
The British Houses of Parliament

The Palace of Westminster[14] in London, the Congress in Washington D.C., the Bundestag in Berlin, the Duma in Moscow, and so on, are examples of legislatures. The principle of representative government means that people vote for political decision makers to carry out their wishes. Most Parliaments are bi-cameral, so that in a 'lower house' the politicians may return from elected constituencies, and in the 'upper house' they may be elected through proportional representation (as in Australia), Crown appointment (as in the UK), or state elections (as in the U.S.). Parliaments are the legislative authorities in most countries. To enact legislation a majority of Members of Parliament must vote for a bill, unless a country has an entrenched constitution, requiring some special majority for constitutional amendments. A government usually leads the process, formed either from Members of Parliament (as in the U.K. or Germany), or elected to executive office separately and appointing a cabinet that is unelected (as in the U.S.).


Main articles: Executive (government) and Head of State
Charles de Gaulle, President of the Fifth French Republic (1958-1969), wearing the Legion of Honour as grand-master of the order.
Charles de Gaulle, President of the Fifth French Republic (1958-1969), wearing the Legion of Honour as grand-master of the order.

In most democratic countries, like the UK, Germany, India and Japan, the executive is elected into and drawn from the legislature and is known as a cabinet. Alongside there is usually a hereditary, or an appointed head of state, such as the Queen of England, or the Bundespräsident which carries out the symbolic function of enacting legislation, but has no formal political power. The other important model is found in countries like France, the U.S. and Russia. Here the executive, is directly elected by a popular vote, and may appoint a cabinet that is not directly elected.

Military and police

Main articles: Military and Police
U.S. Customs and Border Protection officers
U.S. Customs and Border Protection officers

The military and police are sometimes referred to as 'the long arms of the law'. Sociologist Max Weber famously argued that the state is that which controls the legitimate monopoly of the means of violence[32]. Military and police personnel carry out enforcement activities at the request of the government or the courts. The term failed state is used where the police and military no longer uphold security and order and society descends into civil war, anarchy or chaos.


Main article: Bureaucracy

Max Weber also believed that in the early twentieth century a definitive feature of a developed state was its bureaucratic support. The stereotypical bureaucracy involves armies of white collared workers controlling and producing information, bound in 'red tape'. Bureaucracy in reality can emanate either from the state or from private organisations. State agencies are usually responsible for distributing resources at the wish of the people, or the government, which is collected from taxation.

Civil society

Main article: Civil Society

Perhaps the most crucial institution in the law is simply the civil partnerships and associations of ordinary people holding no official positions. Freedom of Speech, and Freedom of Association are our human rights, our civil liberties and most developed and developing countries uphold them. They form the basis of an active and thoughtful democracy. The more people are involved with and concerned by how political power is exercised over their lives, the more acceptable and legitimate the law becomes to the people. Developed political parties or debating clubs, perhaps even online encyclopedias, are signs of a healthy civil society.

Legal profession

Main article: Legal profession
An English Barrister
An English Barrister

Practice of law is typically overseen by either a government organization or independent regulating body such as a bar association, bar council, barrister society, or law society. To practice law, the regulating body must certify the practitioner. This usually entails a two or three-year program at a university faculty of law or a law school, which earns the student a Bachelor of Laws, a Bachelor of Civil Law or a Juris Doctor degree. This course of study is followed by an entrance examination (e.g. bar admission). Some countries require a further vocational qualification before a person is permitted to practice law. In the case of those wishing to become a barrister, this would lead to a Barrister-at-law degree, followed by a year's apprenticeship (sometimes known as pupillage or devilling) under the oversight of an experienced barrister (or master). Advanced law degrees are also often pursued, though they are academic degrees and are not required for the practice of law. These include a Master of Laws, a Master of Legal Studies, and a Doctor of Laws.

Once accredited, a lawyer will often work in a law firm, in a chambers, as a sole practitioner, for a government or as internal counsel at a private corporation. Another option is to become a legal researcher who provides on-demand legal research through a commercial service or on a freelance basis. Many people trained in law put their skills to use outside the legal field entirely. A significant component to the practice of law in the common law tradition involves legal research in order 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 are also important parts of legal practice, depending on the field.


  1. ^ see, Book 3, Ch. XVI, Aristotle, The Politics by Project Gutenberg N.B. this translation reads, "it is more proper that law should govern than any one of the citizens"
  2. ^ Etymonline Dictionary
  3. ^ e.g. In England, s. 52, Law of Property Act 1925
  4. ^ Carlill v. Carbolic Smoke Ball Company [1893] 2 QB 256
  5. ^ e.g. In Germany, Art. 313 BGB
  6. ^ Austotel v. Franklins (1989) 16 NSWLR 582
  7. ^ § 105, II BGB
  8. ^ Bolton v. Stone [1951] A.C. 850
  9. ^ Sturges v. Bridgman (1879) 11 Ch D 852
  10. ^ e.g. concerning a British politician and the Iraq war, Galloway v. Telegraph Group Ltd [2004] EWHC 2786
  11. ^ Taff Vale Railway Co. v. Amalgamated Society of Railway Servants [1901] AC 426
  12. ^ Donoghue v. Stevenson [1932] AC 532
  13. ^ Hunter v. Canary Wharf Ltd. [1997] 2 All ER 426
  14. ^ Friedrich Carl von Savigny, Das Recht des Besitzes (1803) See here [1] for the German text
  15. ^ Paul Matthews, The Man of Property [1995] 3 Med Law Rev 251-274
  16. ^ Ch. 9, s. 123, John Locke, Second Treatise on Civil Government (1690)[2]
  17. ^ Entick v. Carrington (1765) 19 Howell's State Trials 1030
  18. ^ Chapter 9, Line 124, John Locke, Second Treatise on Government (1690)
  19. ^ C-26/62 Van Gend en Loos v. Nederlanse Administratie Der Belastingen
  20. ^ Adolf Berle, The Modern Corporation and Private Property (1932)
  21. ^ Russ VerSteeg, Law in Ancient Egypt (2002) ISBN 0-89089-978-9
  22. ^ H.L.A. Hart, The Concept of Law (1961) Oxford University Press, ISBN 0-19-876122-8
  23. ^ John Austin, The Providence of Jurisprudence Determined (1831)
  24. ^ Max Weber on Law and Economy in Society (1954) p.336, (translated by M. Rheinstein and E. Shils, ed. M. Rheinstein), Cambridge, Harvard University Press
  25. ^ Max Weber, Politik Als Beruf (1919)
  26. ^ Ronald Dworkin, Law's Empire (1986) Harvard University Press
  27. ^ Joseph Raz, The Authority of Law (1979) Oxford University Press
  28. ^ ch. 2, Joseph Raz, The Authority of Law (1979)
  29. ^ Ronald H. Coase, The Nature of the Firm' (1937) Economica, New Series, Vol. 4, No. 16 (Nov., 1937), pp. 386-405
  30. ^ Ronald H. Coase, The Problem of Social Cost, J. Law & Econ. 3, p. 1 (1960)
  31. ^ Sturges v. Bridgman (1879) 11 Ch D 852
  32. ^ Max Weber, Politik Als Beruf (1919)

Further reading

  • Blackstone, William, Sir. An analysis of the laws of England: to which is prefixed an introductory discourse on the study of the law. 3rd ed. Buffalo, N.Y.: W.S. Hein & Co., 189 pp., 1997. (originally published: Oxford : Clarendon Press, 1758) ISBN 1-57588-413-5
  • David, René, and John E. C. Brierley. Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law. 3d ed. London: Stevens, 1985. ISBN 0-420-47340-8.
  • Ginsburg, Ruth B. A selective survey of English language studies on Scandinavian law. So. Hackensack, N.J.: F. B. Rothman, 53 pp., 1970. OCLC 86068
  • Glenn, H. Patrick Legal Traditions of the World: Sustainable Diversity in Law 2nd ed. London: Oxford University Press, 432 pp., 2004. ISBN 0-19-926088-5
  • Iuul, Stig, et al. Scandinavian legal bibliography. Stockholm: Almqvist & Wiksell, 196 pp., 1961. (series: Acta / Instituti Upsaliensis Iurisprudentiae Comparativae; 4) OCLC 2558738
  • Llewellyn, Karl N. & E. Adamson Hoebel. Cheyenne Way: Conflict & Case Law in Primitive Jurisprudence. special ed. New York City: Legal Classics Library, 374 pp., 1992. ISBN 0-8061-1855-5
  • Nielsen, Sandro. The Bilingual LSP Dictionary. Principles and Practice for Legal language. Tübingeb.: Gunter Narr Verlag, 308 pp., 1994. (series: Forum für Fachsprachen-Forschung; Bd. 24) ISBN 3-8233-4533-8


See also

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