Legal systems vary between jurisdictions, with their differences analysed in comparative law. In civil law jurisdictions, a legislature or other central body codifies and consolidates the law. In common law systems, judges may make binding case law through precedent, although on occasion this may be overturned by a higher court or the legislature.
Religious law is in use in some religious communities and states, and has historically influenced secular law.
The scope of law can be divided into two domains: public law concerns government and society, including constitutional law, administrative law, and criminal law; private law deals with legal disputes between parties in areas such as contracts, property, torts, delicts and commercial law. This distinction is stronger in civil law countries, particularly those with a separate system of administrative courts; by contrast, the public-private law divide is less pronounced in common law jurisdictions.
Law provides a source of scholarly inquiry into legal history, philosophy, economic analysis and sociology. Law also raises important and complex issues concerning equality, fairness, and justice.
Etymology
The word law, attested in Old English as lagu, comes from the Old Norse word lวซg. The singular form lag meant 'something laid or fixed' while its plural meant 'law'.
Philosophy of law
But what, after all, is a law? [...] When I say that the object of laws is always general, I mean that law considers subjects en masse and actions in the abstract, and never a particular person or action. [...] On this view, we at once see that it can no longer be asked whose business it is to make laws, since they are acts of the general will; nor whether the prince is above the law, since he is a member of the State; nor whether the law can be unjust, since no one is unjust to himself; nor how we can be both free and subject to the laws, since they are but registers of our wills.
The philosophy of law is commonly known as jurisprudence. Normative jurisprudence asks "what should law be?", while analytic jurisprudence asks "what is law?"
Analytical jurisprudence
There have been several attempts to produce "a universally acceptable definition of law". In 1972, Baron Hampstead suggested that no such definition could be produced. McCoubrey and White said that the question "what is law?" has no simple answer. Glanville Williams said that the meaning of the word "law" depends on the context in which that word is used.
He said that, for example, "early customary law" and "municipal law" were contexts where the word "law" had two different and irreconcilable meanings. Thurman Arnold said that it is obvious that it is impossible to define the word "law" and that it is also equally obvious that the struggle to define that word should not ever be abandoned.
It is possible to take the view that there is no need to define the word "law" (e.g. "let's forget about generalities and get down to cases").
One definition is that law is a system of rules and guidelines enforced by social institutions to govern behaviour. In The Concept of Law, H. L. A. Hart argued that law is a "system of rules"; John Austin said law was "the command of a sovereign, backed by the threat of a sanction"; Ronald Dworkin describes law as an "interpretive concept" to achieve justice in his text titled Law's Empire; and Joseph Raz argues law is an "authority" to mediate people's interests.
Oliver Wendell Holmes defined law as "the prophecies of what the courts will do in fact, and nothing more pretentious." In his Treatise on Law, Thomas Aquinas argues that law is a rational ordering of things, which concern the common good, that is promulgated by whoever is charged with the care of the community. This definition has both positivist and naturalist elements.
Connection to morality and justice
Definitions of law often raise the question of the extent to which law incorporates morality. 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". Natural lawyers, on the other hand, 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 connection with the notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas, notably his Treatise on Law.
Hugo Grotius, the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulseโas Aristotle had indicatedโand reason. Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature". 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". 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 labeled as "moral" or "immoral".
In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law. 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 โฌ500), laws tell us what we "should" do.
Thus, each legal system can be hypothesised to have a 'basic norm' (German: 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.
Therefore, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could encompass all of the political experience.
Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fiction in The Concept of Law. 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 (to vary laws), and the rule of recognition (to identify laws 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" that requires judges to find the best fitting and most just solution to a legal dispute, given their Anglo-American 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. 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 is best left to sociology rather than to jurisprudence.
History
The Code of Hammurabi is an early code of laws, from ancient Babylon.The history of law is closely linked to the development of civilization. Ancient Egyptian law, dating as far back as 3000 BC, was based on the concept of Ma'at and characterised by tradition, rhetorical speech, social equality and impartiality. By the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code, which consisted of casuistic statements ("if โฆ 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, Italian, German, and French.
The Old Testament dates back to 1280 BC and presents 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 enslaved people. However, Athens had no legal science or single word for "law", relying instead on the three-way distinction between divine law (thรฉmis), human decree (nรณmos), and custom (dรญkฤ). Yet Ancient Greek law contained major constitutional innovations in the development of democracy.
Roman law was heavily influenced by Greek philosophy, but professional jurists developed its detailed rules and were highly sophisticated. 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.
Although codes were replaced by custom and case law during the Early Middle Ages, Roman law was rediscovered around the 11th century when medieval legal scholars began to research Roman codes and adapt their concepts to the canon law, giving birth to the jus commune.
Latin legal maxims (called brocards) were compiled for guidance. In medieval England, royal courts developed a body of precedent which later became the common law. A Europe-wide Law Merchant was established so that merchants could trade under common standards of practice rather than the many splintered facets of local laws.
The Law Merchant, a precursor to modern commercial law, emphasised the freedom to contract and the alienability of property. 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. EU law is codified in treaties, but develops through de facto precedent laid down by the European Court of Justice.
Ancient India and China represent distinct legal traditions 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. 100โ300 AD) were foundational treatises in India, and comprise texts considered authoritative legal guidance.
Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia. During the Muslim conquests in the Indian subcontinent, sharia was established by the Muslim sultanates and empires, most notably Mughal Empire's Fatawa-e-Alamgiri, compiled by emperor Aurangzeb and various scholars of Islam. In India, the Hindu legal tradition, along with Islamic law, were both supplanted by common law when India became part of the British Empire.
Malaysia, Brunei, Singapore and Hong Kong also adopted the common law system. The Eastern Asian legal tradition reflects a unique blend of secular and religious influences. Japan was the first country to begin modernising its legal system along Western lines, by importing parts of the French, but mostly the German Civil Code. This partly reflected Germany's status as a rising power in the late 19th century.
Similarly, traditional Chinese law gave way to westernisation in the final years of the Qing Dynasty, in the form of six private law codes based mainly on the Japanese model of German law. 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 prioritises administrative law over private law rights. 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 introduced in 1999 marked a shift away from administrative domination. Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organization.
Legal systems
In general, legal systems can be split between civil law and common law systems. Modern scholars argue that the significance of this distinction has progressively declined. The numerous legal transplants, typical of modern law, result in the sharing of many features traditionally associated with either common law or civil law.
The third type of legal system is religious law, based on scriptures. The specific system by which a country is ruled is often determined by its history, its 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.
Civil law
Civil law is the legal system used in most countries around the world today. In civil law the sources recognised as authoritative are, primarily, legislationโespecially codifications in constitutions or statutes passed by governmentโand custom. Codifications date back millennia, with one early example being the Babylonian Codex Hammurabi.
Modern civil law systems essentially derive from legal codes issued by Byzantine Emperor Justinian I in the 6th century, which were rediscovered by 11th-century Italy. Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class. Instead a lay magistrate, iudex, was chosen to adjudicate.
Decisions were not published systematically, so any case law that developed was obscured and almost unrecognised. 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 to 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.
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." 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, which scholars at the University of Bologna used to interpret their own laws.
Civil law codifications, based closely on Roman law and influenced by 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 Bรผrgerliches Gesetzbuch, modernised their legal codes.
Both these codes heavily influenced not only the law systems of the countries in continental Europe but also the Japanese and Korean legal traditions. A central doctrine in continental European legal thinking, originating in German jurisprudence, is the concept of a Rechtsstaat, meaning that everyone is subjected to the law, especially governments.
Today, countries that have civil law systems range from Russia and Turkey to most of Central and Latin America.
Common law and equity
In common law legal systems, decisions by courts are explicitly acknowledged as law on equal footing with legislative statutes and executive regulations. The doctrine of precedent, or stare decisis (Latin for "to stand by decisions"), means that decisions by higher courts bind lower courts to assure that similar cases reach similar results.
In contrast, in civil law systems, legislative statutes are typically more detailed. Judicial decisions are shorter and less detailed because the adjudicator is writing only to decide a single case, rather than to set out reasoning that will guide future courts.
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 during the Norman Conquest, the law varied from shire to shire, reflecting disparate tribal customs.
The concept of a common law developed during the reign of Henry II during the late 12th century, when Henry appointed judges who had the authority to create an institutionalised and unified system of law common to the country. The next major step in the evolution of the common law came when King John was forced by his barons to agree to a document limiting his authority to pass laws.
The Magna Carta ("great charter") 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. 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. This powerful and tight-knit judiciary gave rise to a systematised process of developing common law.
As time went on, many felt that the common law was overly systematised and inflexible, and an increasing number of citizens petitioned the King to override it. On the King's behalf, the Lord Chancellor started giving judgments 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 for its erratic behavior. Over time, courts of equity developed solid principles, especially under Lord Eldon. In the 19th century in England, and in 1937 in the U.S., the two systems were merged.
In developing the common law, academic writings have always played an important role, both in collecting overarching principles from scattered case law and in advocating change. William Blackstone, from around 1760, was the first scholar to collect, describe, and teach the common law. But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.