Philosophy of law "But what, after all, is a law? Normative jurisprudence asks "what should law be? 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 impulse—as Aristotle had indicated—and reason.
Bentham and Austin argued for law's positivism ; that real law is entirely separate from "morality". While laws are positive "is" statements e. 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. Later in the 20th century, H. 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",  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.
In his view, any categorisation of rules beyond their role as authoritative instruments in mediation are best left to sociology , rather than jurisprudence. Law and economics In the 18th century Adam Smith presented a philosophical foundation for explaining the relationship between law and economics.
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.
His second major article, The Problem of Social Cost , 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. Only the existence of transaction costs may prevent this. The idea is that law and regulation are not as important or effective at helping people as lawyers and government planners believe. Sociology of law Sociology of law is a diverse field of study that examines the interaction of law with society and overlaps with jurisprudence, philosophy of law, social theory and more specialised subjects such as criminology.
Sociology of law is sometimes seen as a sub-discipline of sociology, but its ties to the academic discipline of law are equally strong, and it is best seen as a transdisciplinary and multidisciplinary study focused on the theorisation and empirical study of legal practices and experiences as social phenomena. In the United States the field is usually called law and society studies; in Europe it is more often referred to as socio-legal studies.
At first, jurists and legal philosophers were suspicious of sociology of law. Kelsen attacked one of its founders, Eugen Ehrlich , who sought to make clear the differences and connections 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 barristers and courts.
Around Max Weber defined his "scientific" approach to law, identifying the "legal rational form" as a type of domination, not attributable to personal authority but to the authority of abstract norms. Weber saw this law as having developed in parallel with the growth of capitalism. List of national legal systems In general, legal systems can be split between civil law and common law systems.
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 legal system First page of the 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.
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. Decisions were not published in any systematic way, so any case law that developed was disguised and almost unrecognised.
From — 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. 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. 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.
Both these codes influenced heavily not only the law systems of the countries in continental Europe e. Greece , but also the Japanese and Korean legal traditions. Common law and equity[ edit ] Main article: Common law King John of England signs Magna Carta In common law legal systems , decisions by courts are explicitly acknowledged as "law" on equal footing with statutes adopted through the legislative process and with regulations issued by the executive branch.
The "doctrine of precedent", or stare decisis Latin for "to stand by decisions" means that decisions by higher courts bind lower courts, and future decisions of the same court, to assure that similar cases reach similar results.
In contrast , in " civil law " systems, legislative statutes are typically more detailed, and judicial decisions are shorter and less detailed, because the judge or barrister is only writing to decide the 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.
In medieval England, the Norman conquest the law varied-shire-to-shire, based on 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 that had authority to create an institutionalized 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 sign a document limiting his authority to pass laws. This "great charter" or Magna Carta of 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.
In , for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five. 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 criticized as erratic, that it varied according to the length of the Chancellor's foot. In developing the common law, academic writings have always played an important part, both to collect overarching principles from dispersed case law, and to argue for change.
William Blackstone , from around , was the first scholar to collect, describe, and teach the common law.
Religious law 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. For instance, the Quran has some law, and it acts as a source of further law through interpretation,  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. 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. A trial in the Ottoman Empire, , when religious law applied under the Mecelle Main article: Sharia 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 a first attempt at codifying elements of Sharia law.
Since the mids, efforts have been made, in country after country, to bring Sharia law more into line with modern conditions and conceptions. 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. I authorise and give up my right of governing myself to this man, or to this assembly of men, on this condition; that thou givest up, thy right to him, and authorise all his actions in like manner.
Thomas Hobbes, Leviathan, XVII 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.
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 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. 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.
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. 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. 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.
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. 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. However, in a presidential system, the government is usually formed by an executive and his or her appointed cabinet officials e. Executive government The G20 meetings are composed of representatives of each country's executive branch.
The executive in a legal system serves as the centre of political authority of the State. 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 led by the head of government , 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.