Seldom do the words “law” and “brevity” occur in the same sentence. The notorious prolixity and obscurity of the law may suggest that any attempt to condense even its rudiments is an undertaking of Utopian, if not quixotic, proportions.
It would be rash to undervalue the certainty, generality, and predictability that an effective legal system can provide. Few societies achieve genuine harmony and accord; yet in the absence of law a descent into chaos and conflict would surely be an inevitable consequences for our increasingly polarized planet.
It is important also to emphasize that law cannot properly be understood without an awareness of it social, political, moral, and economic dimensions.
The law is news. Murders, mergers, marriages, misfortunes, and mendacity are daily media fodder, especially when the misbehavior is played out in court. Sensationalist trials concerning celebrities are, alas, only the small tip of a large iceberg. Lawsuits are a negligible part of the law, as will become evident in the following chapters.
But what is law? In very broad terms, two principal answers have been given to this deceptively simple question. On the one hand is the view that law consists of a set of universal moral principles in accordance with nature. On the other hand, law is nothing more than a collection of valid rules, commands, or norms that may lack any moral content.
Few believe that the law can be divorced from its social context. The social, political, moral, and economic dimensions of the law are essential to a proper understanding of its workaday operation.
The privileged class — the patricians. The common people — the plebeians. The magistrates — two consuls.
The appeal of codification: A man need but open the book in order to inform himself what the aspect borne by the law bears to every imaginable act that can come within the possible sphere of human agency: what acts it is his duty to perform for the sake of himself, his neighbor or the public: what acts he has a right to do, what other acts he has a right to have others perform for his advantage. In this one repository the whole system of the obligations which either he or any one else is subject to are recorded and displayed to view.
The concept of the rule of law which, in his view, consisted of the following three principles:
- The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power.
- Equality before the law or the equal subjection of all classes to the ordinary law of the land administrated by the ordinary courts.
- The law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts.
The system of codified law that obtains in most of Europe, South America, and elsewhere is known as civil law, in contrast to the common law system that applies in England, former British colonies, the US, and most of Canada.
Though the two traditions — common law and civl law — have, over the last two century, grown closer, there are at least five significant differences between the two systems.
First, the common law is essentially unwritten, non-textual law that was fashioned by medieval lawyers and the judges of the royal courts before whom they submitted their argument.
Second, the common law is casuistic: the building blocks are cases rather than, as in the civil law system, texts. Ask any American law student ho most of his or her study-time is spent. The answer will almost certainly be “reading cases.”
Third, in view of the centrality of court decisions, the common law elevates the doctrine of precedent to a supreme position in the legal system. This doctrine means both that previous decisions of courts that involve substantially similar facts ought to govern present cases and that the judgments of higher courts are binding on those lower in the judicial hierarchy.
Fourth, while the common law proceeds from the premise “where there is a remedy, there is a right,” the civil law tradition generally adopts the opposite position: “where there is a right, there is a remedy.”
Finally, in the 13th century, the common law introduced trial by jury for both criminal and civil cases. The jury decides on the facts of the case; the judge determines the law.
In the 17th century, the writ of habeas corpus (literally “you must produce the body”) was a vital check on arbitrary power, for it required the production of a person detained without trial to be brought before a court. In the absence of a legal justification for his imprisonment, the judge could order the individual to be liberated. It took a century for civil law jurisdictions to accept this fundamental attribute of a free society.
Life might be much simpler if the common law consisted of a code of rules, identifiable by reference to source rules, but the reality of the matter is that it is all much more chaotic than that, and the only way to make the common law conform to the ideal would be to codify the system, which would then cease to be common law at all. The myth, for that is what it is, owes its attractiveness to another ideal, that of the rule of law, not men. It consequently distorts the nature of the system to conceive of the common law as a set of rules, an essentially precise notion, as if one could in principle both state the rules of the common law and count them like so many sheep, or engrave them on tablets of stone.
Confucianism adopted the concept of “li”: an intense opposition to any system of fixed rules that applied universally and equally. Though Chinese “legalists” sought to undermine the political authority of this Confucian philosophy of persuasion by championing “rule by law” (“fa”) in place of the organic order of the Confucian “li”, the latter continues to dominate China.
It is worth recalling the words of the great American judge Learned Hand, who prescribed this antidote to an excessive faith in the law:
I wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.
Without law, society is barely conceivable. We tend, unfortunately, towards egoism. The restraint that law imposes on our liberty is the price we pay for living in a community. “We are slaves of the law so that we may be free.” And the law has provided the security and self-determination that has, in large part, facilitated social and political advancement.
The cliche “law and order” is perhaps more accurately rendered “law for order.” Without law, it is widely assumed, order would be unattainable. And order — or what is now popularly called “security” — is the central aim of most government.
Aristotle’s approach remains the launching pad for most discussions of justice. He argues that justice consists of treating equals equally and “unequals” unequally, in proportion to their inequality. Aristotle distinguishes between corrective or commutative justice, on the one hand, and distributive justice, on the other. The former is the justice of the courts which is applied in the redress of crimes or civil wrongs. It requires that all men are to be treated equally. The latter concerns giving each according to his desert or merit. This, in Aristotle’s view, is principally the concern of the legislator.
An especially influential theory of justice is utilitarianism, which is always associated with the famous English philosopher and law reformer Jeremy Bentham:
Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other hand the cain of causes and effects, are fastened to their throne. The principle of utility recognizes this subjection, and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reason and of law. Systems which attempt to question it, deal in sounds instead of sense, in caprice instead of reason, in darkness instead of light.
The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.
Justice is unlikely to be attained by a legal system unless its rules are, as far as possible, reasonable, general, equal, predictable, and certain. None of these objectives can be achieved in absolute terms; they are ideals.
In a just or nearly just society, few obstacles beset the path of the judge who, in a general sense, seeks to advance the cause of justice. Heroism is rarely required. Where injustice pervades the legal system, however, the role of a judge assumes a considerably more intractable form.
Lawyers, on the other hand, are not state officials. They owe a strong duty to their clients. They must, of course, work within the system, but their responsibility is to utilize the law, not to dispense justice. They may find the law morally repugnant, but their role within an unjust legal system is easier to justify than that of the judge.
The law of many countries includes a bill of rights as a means of seeking to protect individuals against the violation of an inventory of rights that are considered fundamental. In some cases, a bill of rights is constitutionally entrenched. Entrenchment is a device which protects the bill of rights, placing it beyond the reach of simple legislative amendment.
Unlike manna, the law does not fall from the sky. It springs from recognized “sources.” This reflects the idea that in the absence of some authoritative source, a rule that purports to be a law will not be accepted as a law. Lawyers therefore speak of “authority.” “What,” a judge may ask a lawyer, “is your authority for that proposition?” In reply, the common lawyer is likely to cite either a previous decision of a court or a stature. A civil lawyer will refer the court to an article of, say, the civil code. In either case, the existence of an acknowledged source will be decisive in the formulation of a legal argument.
A second approach seeks to discover the purpose of the legislation. In our example, we may conclude that the purpose of the provision is to secure the peace and quiet of the park. If so, we are likely to find it easier to decide what is the real intention of the legislation, and hence to distinguish between a car (noisy) and a bicycle (quiet). This approach also permits judges to consider the wider purpose of the legal system.
It is fair to say that there is no single ideal approach to unlock the door to an ideal construction of a stature. Indeed, there is considerable doubt as to whether the “rules” are, or can be, uniformly applied.
In respect of the common law of England, the previous decisions of courts (judicial precedents) are a fundamental source of law. The doctrine of precedent stipulates that the reasoning deployed by courts in earlier cases is normally binding on courts who subsequently hear similar cases. The idea is based on the principle “stare decisis” (“let the decision stand”). It is, of course, designed to promote the stability and predictability of the law, as well as ensuring that like cases are, as far as possible, treated alike.
Whenever your dog does anything you want to break him of, you wait until he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. The more antique the precedent — that is to say, the more barbarous, inexperienced, and prejudice-led the race of men, by and among whom the precedent was set — the more unlike that the same past state of things is the present state of things.
At the core of most legal systems, however, are the fundamental disciplines that hark back to the roots of law: the law of contract, tort, criminal law, and the law of property. The that nucleus must be added a horde of disciplines, including institutional and administrative law, family law, public and private international law, environmental law, company law, labor law, intellectual property law, tax law, securities law, banking law, maritime law, welfare law, human rights law.
Agreements are an indispensable element of social life. When you agree to meet me for a drink, borrow a book, or give me a lift to work, we have entered into an agreement. But the law will not compel you to turn up at the bar, return my book, or pick me up in your car. These social arrangements, while their breach may cause considerable inconvenience, distress, and even expense, fall short of a contract as understood by most legal systems.
One of the hallmarks of a free society is the autonomy it affords its members to strike the bargains of their choice, provided they do not harm others. Freedom of contract may be defended also on utilitarian grounds: by enforcing contracts in accordance with the value placed on things by the market, resources — goods and services — may be bought by those who place the highest value upon them. It is sometimes claimed that this yields a just distribution of scarce resources.
In theory, my contract with the electricity company that supplies power to my home regards both parties as being on an equal footing. But this is simply not the case. I am hardly in a position to haggle over the terms of the agreement which is inexorably a standard form contract. A featherweight is engaged in a contest with a squad of heavyweights. The law therefore tempers the hardship of so-called “unfair” terms by consumer legislation and other institutional means that attempt to redress the balance by, for instance, empowering courts to disallow unconscionable clauses and permitting them to enforce only “reasonable” terms.
In order to constitute a binding contract, the law normally requires that the parties to the agreement actually intend to create legal relations. Breaking a promise is almost always regarded as immoral, yet it results in legal consequences only where certain requirements are satisfied, though in certain civil law countries (such as France, Germany, and Holland) a person may be held liable — even before his offer is accepted — for failing to negotiate in good faith.
The common law stipulates that until you accept my offer I am at liberty to withdraw it. German, Swiss, Greek, Austrian, and Portuguese law, on the other hand, provide that I am bound by my offer; I cannot simply revoke it with impunity. The French and Italian Civil Code provides that an offer may not be revoked before the expiry of a specified period. If no period is specified in the offer, it may be withdrawn until acceptance.
Both arguments were rejected by the court. It held that the advertisement constituted an offer of a unilateral contract between the company and anyone who, having seen the advertisement, acted on it.
Contrary to the popular myth, a contract does not generally need to be in writing. Apart from certain contracts (the sale of land is the most conspicuous example), no formality is required to bind the parties. An oral agreement is generally no less binding than a written one, though, as we have seen, the common law requires evidence of consideration in return for a promise. Increasing government paternalism — in the name of consumer protection — has, however, generated a rise in the number of formalities, including written, or more usually, printed contracts required by legislation.
Mistake, misrepresentation, or duress may render a contract voidable. This is because there is, in effect, no genuine agreement. For example, if I am mistaken as to the subject of the contract (I thought I was buying a Ferrari, you were, in fact, selling a Ford), or you have misrepresented the Ford as a Ferrari, or you forced me into the sale, I have defences to your claim that I should perform my side of the agreement, and if I can show that there has been, say, fraudulent misrepresentation, the contract may be vitiated.
Torts are civil wrongs; they include injuries to my person, property, reputation, privacy, even my peace of mind. Like the law of contract, the law of tort provides victims (or “plaintiffs”) with the right to obtain compensation for their loss. Unlike contract, however, which has as its principal goal of keeping of promises, tort law protects a wide range of interests. The law provides remedies, pre-emptive and compensatory, for conduct that causes harm either intentionally or negligently.
In the modern world dominated by insurance, the issue tends to alter from blame to burden: instead of asking “who is at fault?” the question becomes “who can best bear the cost?” And the answer is often the insurance company, with whom there is normally a compulsory liability insurance policy.
The reasonable man:
He is devoid of any human weakness, with not one single saving vice, sans prejudice, procrastination, ill-nature, avarice, and absence of mind, as careful for his own safety as he is for that of others, this excellent but odious character stands like a monument in our courts of justice, vainly appealing to his fellow citizens to order their lives after his own example.
Criminal liability thus has three basic components: conduct, without justification and without excuse. To amount to a crime, “conduct” must inflict or threaten substantial harm to individual or public interests.
In addition, society cannot tolerate attacks upon its own survival; treason, terrorism, and public disorder are therefore generally criminalized.
And there is a tendency for criminal law to be utilized in pursuit of paternalistic ends. Think, for example, of laws requiring the wearing of seat belts or crash helmets, or the legislation of most countries prohibiting the possession of drugs. The ostensible purpose of these laws is to protect individuals against their own folly or fragility.
The state, by assuming responsibility for chastising the criminal, reduces the risk of victims of crime “taking the law into their own hands.”
The common law distinguishes between real property (land as distinct from personal or movable possessions) and personal property. Civil law system distinguish between movable and immovable property.
But property is what the law declares it to be: a ten dollar bill is a piece of paper with no intrinsic value; the law imparts value to it. In a similar fashion, the law may create property, as it does in the case of IP.
Third, the law may be called upon to settle a contest between the owner and a possessor of a thing. The former is, as we have seen, the person with the strongest long-term claim to the possession of a thing. But suppose I rent my villa to you for a year. You currently possess the property, and while I have an ultimate right to possess it, some legal systems favor the right of the tenant (at least for the duration of the lease) over the owner; others prefer the owner.
Although we cannot easily evade moral question marks, the identification, or even the acknowledgement, of moral values by which to live, is always contentious. Being or doing good is not necessarily synonymous with obeying the law, even though the law, its ideas and its institutions, are often informed by moral values. It would be strange if it were otherwise.
Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.
Lord Devlin argued that society has every right to punish conduct that, in the view of the ordinary member of society (“the man in the jury box”), is grossly immoral. Harm, he contended, is irrelevant; the fabric of society is maintained by a shared morality. This social cohesion is undermined when immoral acts are committed — even in private, and even if they harm no one. Societies disintegrate from within, he contended, more often than they are destroyed by external forces:
There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government. The suppression of vice is as much the law’s business and the suppression of subversive activities.
Moral questions rarely admit of simple solutions. They frequently polarize society. The abortion debate in the US is a compelling example.
Killing people outside war is the most seriously-regarded crime ordinarily committed. The only thing more strongly forbidden by our culture is eating people. We enjoy eating members of other species, however. Many of us shrink from judicial execution of even the most horrible human criminals, while we cheerfully countenance the shooting without trial of fairly mild animal pests. Indeed we kill members of other harmless species as a means of recreation and amusement. A human foetus, with no more human feeling than an amoeba, enjoys a reverence and legal protection far in excess of those granted to an adult chimpanzee. Yet the chimp feels and thinks and may even be capable of learning a form of human language. The foetus belongs to our own species, and is instantly accorded special privileges and rights because of it.
Moral questions have, of course, absorbed philosophers since Aristotle. Theories of natural law have sought to resolve the conflict between what “is” and what “ought” to be. Its fundamental contention, in simple terms, is that what naturally is, ought to be. What occurs in nature is good; we should seek to pursue it. Reproduction is natural; therefore we ought to create offspring. As Cicero, the Roman lawyer, put it:
True law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting. It is a sin to try to alter this law, nor it is allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. God is the author of this law, its promulgator, and its enforcing judge.
Despite his scorn, natural law has been exploited to justify revolutions — especially the American and the French — on the ground that the law infringed individuals’ natural rights.
This view has been persuasively challenged by Ronald Dworkin, who denies that law consists exclusively of rules. In addition to rules (which “are applicable in an all-or-nothing fashion”), there are non-rule standards: “principles” and “policies,” which, unlike rules, have “the dimension of weight or importance.” A principle is a standard that is to be observed, not because it will advance or secure an economic, political, or social situation, but because it is a requirement of justice or fairness or some other dimension of morality. A policy, on the other than, is that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community. When the judge can find no immediately applicable rule, or where no settled rule dictates a decision, the judge is called upon to weigh competing principles, which are no less part of the law for their not being rules. In such “hard cases,” since a judge is not expected to resort to his personal preference in arriving at a decision, he has, contrary to the positivist view, no real discretion. There is always one right answer, and it is the judge’s task to find it (in “hard cases”) by weighing competing principles and determining the rights of the parties in the case before him.
The ubiquity of conflict among humans necessitates some forum in which they might be amicably resolved. Courts are a prerequisite of all legal systems. They have power, authority — or what lawyers called “jurisdiction” — over specified criminal, civil, and other matters. This entails that their decisions (which are ultimately supported by force) are accepted as authoritative by the parties, who would be unlikely to do so if they did not trust in the independence and impartiality of the professional judges on the bench.
Some trial courts operate with a judge and a jury: juries are responsible for making findings of act under the direction of the judge, who decides the law. This combination constitutes the judgment of the court. In other trial courts, both fact and law are decided by the judge.
Appellate courts in common law jurisdictions review the decisions of trial courts or lower appellate courts. Their task is generally restricted to considering questions of law: did the trial court, for example, apply and interpret the law correctly? Normally they do not hear evidence of factual issues, though should new evidence have emerged, an appeal court may evaluate it in order to determine whether the case should be remitted to a court of first instance to be retried.
An important difference, however, is that whereas as we saw, the burden of proof in a criminal trial is “beyond reasonable doubt,” the plaintiff in a civil case need only prove his case “on a balance of probabilities.”
Among the much-vaunted virtues of the jury trial is the extent to which it operates as a curb on the power and influence of the judge. By involving (usually 12) ordinary citizens in the administration of justice, it is argued, the values of the community may be expressed. A group of randomly selected lay persons, it is claimed, is a more democratic arbiter of guilt than a judge, who is perceived, rightly or wrongly, as an agent of the government.
Critics of the jury, on the other hand, normally express unease about the fact that juries, unlike judges, are not required to give reasons for their decision, thereby opening the door to emotion and prejudice, especially when the race of the defendant may be a factor. Doubt is also voiced in respect of the ability of the average juror to comprehend complex scientific or other technical evidence. Complex commercial trials, for example, generate an enormous quantity of highly specialized information.
Advocacy in court represents a small, though important, part of the profession’s work. Most lawyers, however, are preoccupied daily with drafting (contracts, trusts, wills, and other documents), advising clients, conducting negotiations, conveying property, and other rather less glamorous tasks. Yet even if the majority of lawyers never set foot in a court, the essence of lawyering is the battle waged on behalf of the client. In this campaign the skills of advocacy — whether in oral or written form — are paramount. Law is often war, and the lawyer is the warrior.
But some detect a reversal in this movement, and that in many instances freedom of contract is more apparent than real. For example, what choice does the consumer have when faced with a standard-form contract for telecommunications, electricity, or other utilities? And where is the employee who, when offered a job and presented with a standard-form contract by his multinational employee, would attempt to renegotiate the terms? It is true that many advanced legal systems seek to improve the bargaining position of the individual through various forms of consumer protection legislation. Yet when a lightweight steps into the ring with a heavyweight, the outcome is rarely in doubt. Has “status” returned in the shape of consumer or employee?
Over 800M go to bed hungry every night, representing 14% of the world’s population. The UN estimates that hunger claims the lives of about 25K people every day.