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LEGAL PROFESSION
Lawyers give their clients advice about their legal rights and duties, and
represent them in court. As 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. 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. An aspiring practitioner
must be certified by the regulating body before undertaking his practice. This
usually entails a two or three year programme at a university faculty of law or
a law school, earning 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. admission to the bar). Some countries require a further
vocational qualification before a person is permitted to practice law. For those
wishing to become a barrister a year's pupillage under the oversight of an
experienced barrister. Beyond the requirements for legal practice higher
academic degrees may be pursued. Examples include a Master of Laws, a Master of
Legal Studies or a Doctor of Laws.
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 commercial service or through freelance work.
Many people trained in law put their skills to use outside the legal field
entirely. 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 are
also important to legal practice, depending on the field.
Lawis a system of rules usually enforced through a set of institutions.Law
affects everyday life and society in a variety of ways. Contract law regulates
everything from buying a bus ticket to trading swaptions on a derivatives
market. Property law defines rights and obligations related to buying, selling,
or renting real property such as homes and buildings. Trust law applies to
assets held for investment, such as pension funds. Tort law allows claims for
compensation when someone or their property is harmed. If the harm is
criminalised in a penal code, criminal law offers means by which the state
prosecutes and punishes the perpetrator. Constitutional law provides a framework
for creating laws, protecting people's human rights, and electing political
representatives, while administrative law allows ordinary citizens to challenge
the way governments exercise power. International law regulates affairs between
sovereign nation-states in everything from trade to the environment to military
action. "The rule of law", wrote the ancient Greek philosopher Aristotle in 350
BCE, "is better than the rule of any individual."
Legal systems around the world elaborate legal rights and responsibilities in
different ways. Laws and legal systems reflect the society and culture out of
which they arise. A basic distinction is made between civil law jurisdictions
and systems using common law. Some countries base their law on religious texts,
while in others traditional customary law or Socialist legal theory are strong
influences. Scholars investigate the nature of law through many perspectives,
including legal history and philosophy, or social sciences such as economics and
sociology. The study of law raises important questions about equality, fairness
and justice, which are not always simple. "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." The most important
institutions for law are the judiciary, the legislature, the executive, its
bureaucracy, the military and police, the legal profession and civil society.
Legal subjects
Though all legal systems deal usually with the same or similar issues, different
countries often categorise and name legal subjects in different ways. Quite
common is the distinction between "public law" subjects, which relate closely to
the state (including constitutional, administrative and criminal law), and
"private law" subjects (including contract, tort, property).In civil law
systems, contract and tort fall under a general law of obligations and 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",
although there are many further disciplines which might be of greater practical
importance.
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.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 organisations.
Public international law concerns relationships between sovereign nations. It
has a special status as law because there is no international police force, and
courts lack the capacity to penalise disobedience. The sources for public
international law to develop are custom, practice and treaties between sovereign
nations. The United Nations, founded under the UN Charter, is the most important
international organisation, established after the Treaty of Versailles's failure
and World War II. Other international agreements, like the Geneva Conventions on
the conduct of war, and international bodies such as the International Court of
Justice, 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 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. This increases the number
of disputes outside a unified legal framework and the enforceability of standard
practices. Increasing numbers of businesses opt for commercial arbitration under
the New York Convention 1958.
European Union law is the first and only example of a supranational legal
framework. However, given 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 pooled their authority through
a system of courts and political institutions. They have the ability to enforce
legal norms against and for member states and citizens, in a way that public
international law does not. As the European Court of Justice said in 1962,
European Union law constitutes "a new legal order of international law" for the
mutual social and economic benefit of the member states.
Constitutional and administrative law
Main articles: Constitutional law and Administrative law
The French Declaration of the Rights of Man and of the Citizen, whose principles
still have constitutional valueConstitutional 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; in those jurisdictions the
constitution is composed of statute, case law and convention. A case named
Entick v. Carringtonllustrates 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."
The fundamental constitutional principle, inspired by John Locke,[11] is 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. 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.
Criminal law
Main article: Criminal law
A depiction of a 1600s criminal trial, for witchcraft in SalemCriminal law is
the body of law that defines criminal offences and the penalties for convicted
offenders.Apprehending, charging, and trying suspected offenders is regulated by
the law of criminal procedure.In every jurisdiction, a crime is committed where
three elements are fulfilled. First, the accused must commit the criminal act,
or actus reus (guilty act). Second, there must exist a victim, who suffered a
legally recongnised harm. In the case of victimless crimes, the legal system
regards the accused, or society at large, as the victim of the criminal act.
Third, there must exist causation, which is a logical connection, supported by
evidence, that establishes the link between the criminal act and the harm
suffered. If it cannot be proven that the act caused the harm, a conviction
cannot be sustained. For most, but not all crimes, the criminal must also have
the requisite malicious intent to do a criminal act, or mens rea (guilty mind).
A mens rea, however, is not a required element for strict liability crimes,such
as statutory rape, which require only that the accused engaged in a criminal
act; the legal system does not take into account the mental state of the accused
when determining culpability for the offense.
Examples of different kinds of crime include murder, assault, fraud or theft. In
exceptional circumstances, defences can exist to some crimes, such as killing in
self defence, or pleading insanity. Another example is in the 19th century
English case of R v. Dudley and Stephens,[17] which tested a defence of
"necessity". The Mignotte, sailing from Southampton to Sydney, sank. Three crew
members and a cabin boy were stranded on a raft. They were starving and the
cabin boy 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, especially
among seafarers, was outraged and overwhelmingly supportive of the crew's right
to preserve their own lives. In the end, the Crown commuted their sentences to
six months.
Criminal law offences are viewed as offences against not just individual
victims, but the community as well. 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 have capital punishment and
corporal 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. On the international field, 104 countries have signed the
enabling treaty for the International Criminal Court, which was established to
try people for crimes against humanity.
Contracts
Main article: Contract
The Carbolic Smoke Ball offer, which bankrupted the Co. because it could not
fulfill the terms it advertisedThe concept of a "contract" is based on the Latin
phrase pacta sunt servanda (agreements must be kept). Contracts can be simple
everyday buying and selling or complex multi-party agreements. They can be made
orally (e.g. buying a newspaper) or in writing (e.g. signing a contract of
employment). Sometimes formalities, such as writing the contract down or having
it witnessed, are required for the contract to take effect (e.g. when buying a
house).
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 Companya
medical firm advertised that its new wonder drug, the smokeball, would cure
people's flu, and if it did not, 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".
"Consideration" means all parties to a contract must exchange something of value
to be able to enforce it. Some common law systems, like Australia, are moving
away from consideration as a requirement for a contract. The concept of estoppel
or culpa in contrahendo can be used to create obligations during pre-contractual
negotiations.In civil law jurisdictions, consideration is not a requirement for
a contract at all. 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)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.
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