What is Law?
Law is a system of rules and guidelines that are enforced through social institutions to govern behavior. It serves as a mediator of relations between people. Law is also the name for the rule and regulation made by man which a particular country or community recognizes as regulating the actions of its members.
The law’s function may be to keep the community moral, preserve the status quo, maintain strong leadership, protect personal freedoms, prevent a civil war, or to protect the political state. Whether a country is democratic or dictatorial, unified or divided, law serves to bind the populace together. The law of a state is derived from the unconscious customs of the land, or on a more conscious level, by legislators enacted into statute or codified in the constitution. It can also be interpreted or pronounced by a judge through precedent.
The enforcement of the law can be carried out by the police or public prosecutors . These officials perform the function of enforcing the law by investigating and prosecuting potential lawbreakers. The judicial branch of government interprets the law, applies the law to the facts of each case and renders judgments. Another way to enforce law is through private security services. In some cases, private entities can measure out their own kind of justice through civil actions against others.
Law is generally divided into two types: criminal and civil. Criminal laws prosecute and punish those who commit crimes or infringe on the rights of others. Civil laws resolve disputes between individuals or organizations. There are also a number of subcategories of laws, including property laws and laws regarding the regulation of permits and licenses. Laws can be local (such as ordinances that govern traffic within city limits), state (laws enacted by the state legislature), or federal (passed by the US Congress).
Historical Background of Legal Systems
Law is nothing if not old and has a long history. The Ancient Romans had a legal system, which has survived into modern times. For the period of the Roman Empire the Emperor would appoint officials to provide rules and guidance to settle disputes between citizens. In practice, these officials were invariably drawn from the upper class, and their judgments tended to reflect the views of the aristocracy. Through the ages the top judges viewed themselves as forming the law, rather than simply being guides. Thus it was that legal developments in England were overseen by judges, not Parliament. The concept of setting law by reference to judicial decisions fitted with the views of Judges, because they were not swayed by the party giving them instructions.
From the 12th century, the development of the Common Law was under the control of the King and his Chancellor. The King could override the Chancellor’s decisions, but the King’s role in the process was to support the Chancellor. It was only after the English Civil War in the 17th century, when Charles II was restored to the Throne, that the judicial role of the judges came to be questioned.
The Civil War led to a change of monarch, Government, Parliament and Constitution in England. In the years before the Civil War the King had beheaded over 500 challengeable subjects of the realm, seemed to have unlimited power over all persons and all property within England, and his powers were recognised and regulated by law. No one mentioned democracy and the people at large were not voters. Indeed, most males and all females were not allowed to vote. Women were not considered to be fit to do so, and most adult males did not have a significant part to play in decisions about Government.
One view of the Monarchy is that sovereignty comes from God, and the people have no right to challenge the lawful rulings of the Monarch or the Chancellor. The other view is that Parliament has law making powers, the Monarch does not, and the People give sovereignty to the Monarch and Government. To challenge the monarch was treason, to challenge Parliament was contempt.
Throughout the 20th century and early 21st century, the Lords of Appeal in Ordinary tended to take the U.S. approach to judicial law making by advising Parliament rather than seeking to form law on their own. The first instance Judges did formulate the law of England for hundreds of years, subject only to secondary legislation (i.e. from Parliament) and later, Appeals. Even today, the weight of Lord Justice opinions – the BG or Dennings of the day – are determinative of the outcome of a case. The Order of precedence for the appeal courts, and the binding force of the lower court decisions and of privilege from appeal is not mentioned in the Law, but is followed in the courts.
The core of the ancient religious aspect of laws in England remains today, in that religious convictions still form a powerful encouragement to compliance with the law. The effect of religious emphasis appears to have waned over time, but was for many centuries the most significant influence on the behaviour of the citizens of England, alongside fear of punishment.
A key milestone was the Magna Carta in 1215 and then its successors in 1297 and 1625. The British Colonialist system sought to impose a British system of justice across the Empire, and created many Courts to support this. After the end of the British Empire, the legacy of our legal system forms part of the heritage of many Commonwealth countries.
The U.S. Constitution 1788 entrenched many liberal democratic values, such as the separation of powers. The impact of that Constitution has been far reaching. In 1948 the preamble to the United Nations Universal Declaration of Human Rights stated that the "..duty of the individual is to work for the promotion of respect for human rights and freedoms so that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms." Parts of the UDHR are now enshrined in legislation in many countries, including provisions regarding equality before the law, appeal rights, independence of the judiciary and the presumption of innocence.
Types of Legal Systems
The most commonly used legal systems in the world are civil law, common law, customary law, and religious law. Each of these systems has distinct characteristics and is applied in different ways.
The civil law system is one of the oldest and most widely applied legal systems in the world. It originated in Europe and is based on written laws and statutes. Judges in civil law countries make decisions based on written codes and laws, rather than interpreting customs and traditions as in common law systems. In a civil law system, laws are codified into a comprehensive body of rules, which judges must adhere to when making decisions. This often leads to less judicial discretion and more predictability in the application of the law.
Common law is a legal system originating in England that is now in use in many countries around the world, including the United States. Unlike the civil law system, common law relies heavily on judicial precedent and interpretation of the law. When making decisions, judges in common law countries interpret written laws and statutes while taking into account past rulings made by other judges. This leads to more flexibility in the application of the law and the development of a body of law that is more closely aligned with the society’s customs and traditions.
Customary law is a system that relies on customs and practices rather than written laws or codes. It is often used in indigenous or tribal societies and is typically unwritten. Decisions in customary law systems are based on the traditions and customs of the community or society. While it may be less formal than other legal systems, customary law is an important part of the legal landscape in many societies.
Religious law is a legal system that is based on religious beliefs and practices. The application of religious law varies widely among different religious groups, and often is intertwined with cultural practices. Religious law can be used in combination with other legal systems, such as civil law or common law.
The use of these different legal systems is influenced by a variety of factors, such as a country’s history, culture, and political climate. These systems can also change over time, as countries adopt new laws and codes.
Judicial Structure
In a typical legal system, the courts are organized in a hierarchy. At the bottom are the lower courts, which primarily deal with cases such as small claims, minor criminal offenses, business disputes and family law matters like divorce. These courts are known by different names depending on the geographical location or legal system, such as magistrate courts, justice courts, municipal courts and district courts.
Above the lower courts are the appellate courts. These courts have authority to review and modify the decisions of the lower courts. Among their responsibilities are ensuring that the correct law was applied in a case and that the case had a fair trial or hearing. They do not re-try the case or hear new evidence. The appellate courts also have authority to review cases reached by the lower courts under their original jurisdiction.
Above the appellate courts are usually one or two supreme courts, depending on the state. These courts typically have the power to decide whether or not the courts below them made an error. They typically hear only cases of supreme national or state importance. Unlike most appellate courts, the decisions of the supreme courts are typically final.
The structure and organization of courts may vary from one legal system to another.
Key Legal Concepts
A few key legal principles are fundamental and absolutely essential to a fair system. These basic principles of any legal system are the rule of law, due process, and the separation of powers among other important principles.
The rule of law is a principle that requires all people and institutions, including the state and those who govern, to be accountable to the same laws. The rule of law implies that the law applies equally to all persons and includes important procedural safeguards such as "equality before the courts and tribunals;" presumption of innocence; respect for conscience; and requirements of an independent and impartial judiciary and legal advice. Only the rule of law can guarantee fairness and justice under a system of laws that apply equally to all, without exception.
A concept frequently confused with the rule of law is the separation of powers. The critical function of the separation of powers is to ensure that no one person, or group of people has total control over the government. The principle of the separation of powers divides the state into branches, each with its own powers and responsibilities . Usually there are three branches: the executive branch (the politicians and those who work for them); the judicial branch (the courts and those who work for them); and the legislative branch (the various law-making bodies). The separation of powers is the check that keeps the executive from becoming the legislative and judicial branches, while also maintaining independence among the three branches.
Due process means the administration of justice and the enforcement of the law in the interest of the community and the individual, requiring fairness, justice, practicality, and expedition. Due process subjects all law of the land to the just and impartial treatment of all individuals regardless of race, creed, or social status. Not only the legislative and executive branches but also the judiciary are thus bound to uphold the law, and all judicial proceedings must comply with due process. A violation of the principle of due process occurs when there are defects in the application of the law to the individual (both substantive and procedural). The Constitution guarantees that everyone will have their day in court before an unbiased adjudicator or jury. Due process is both a constitutional right and a common law doctrine.
Roles of Legal Professionals
Judges play a crucial role in the legal system. They are responsible for presiding over court cases and ensuring that trials are fair and just. Judges are expected to be impartial and make decisions based on the evidence presented in court, as well as the applicable law. They interpret the law and apply it to the facts of the case at hand.
Lawyers, also known as attorneys or counselors, are licensed legal professionals who represent clients in legal matters. Their main responsibility is to provide legal advice and representation. Lawyers may represent clients in court, advise them on legal rights and obligations, draft legal documents, and negotiate on their behalf. In some cases, lawyers may also act as mediators, helping parties to resolve their disputes without going to court.
Paralegals, also called paralegal assistants or legal assistants, work under the supervision of lawyers. They perform various tasks to support lawyers, including conducting legal research, drafting legal documents, and organizing and maintaining client files. Paralegals are not permitted to give legal advice or represent clients in court, but they can help lawyers prepare for trials and other legal proceedings.
Legal secretaries perform administrative tasks to support lawyers and legal teams. They manage schedules, draft correspondence, and organize documents. Legal secretaries may also assist lawyers with research and the preparation of legal documents.
Each of these legal professionals plays an important role in the operation of the legal system. Together, they ensure that justice is served and that the legal system functions smoothly.
Law in Practice
Consider you and your friends are going away for the weekend. One of you books the hotel under their name and pays for it with a credit card. Is anyone responsible to pay back that amount to the person who booked the hotel? Yes, all of you are. You have all entered into an oral contract amongst yourselves that you may be obligated to pay depending on your agreement. You didn’t specifically state that each of you would pay your share, but since everyone knew that was the plan, the contract covered all of you. That is how law works in everyday life: through agreements, promises, and acceptance. It isn’t always in writing.
You might be asked to sign a contract for work or in relation to the sale of a car before you begin work or purchase a car. This is to ensure that you will and can pay for services or property before anything happens. It is a legally binding agreement, which means that there is a law that says it must happen. If you don’t do what you said you would in the written contract, then the other party can go to court to seek remedies, such as monetary compensation.
In addition to contracts relating to property, such as the purchase of real estate, household appliances, or automobiles, there are also contracts for employment. Typically, you do not have to worry about your employer suing you, or you suing your employer, for damages because of the nature of employment. But if a dispute arises about what your employment entails, or if a contract violation occurs, then yes, you can go to court. However, there are no "no compete" clauses that can restrict your future employment, nor can they say you are liable for costs and expenses if you don’t follow what the lawsuit says.
Family law is very well known, as it deals with divorce, annulments, custody, adoption, guardianship, domestic relations (dating relationships) and paternity. With family law, there is no contract involved; however, the law is still there to help protect you if you need it. For example, via a bank’s power of attorney, you can declare one of your friends to be responsible for your affairs while you travel, so if an emergency occurs, you know they will be there to still help you with your signature.
When we think of property, we often associate it with land, homes, or real estate. But property law also relates to what is legally yours based on if you have paid for it, received it as a gift, or inherited it. It also covers what you have access to at your home (internet, electricity, garbage collection) and what you can own. For example, you cannot have property that is illegal or dangerous to society. You can be charged with a crime if you do.
Future Directions in Legal Systems
As we look towards the future, several trends may have a significant impact on law and its associated structures. For instance, as technology continues to advance, we may see an increase in online legal services, virtual courtrooms, and AI-driven legal research. Though many view these as developments to be welcomed, there are concerns that the digital divide may exacerbate the inequities within the legal process. As the world becomes more interconnected through globalization, we may see the emergence of hybrid legal systems that draw from multiple legal traditions . For example, we may see legal systems that blend common law and civil law principles or incorporate indigenous legal practices into state law. This may lead to legal systems that are more reflective of the local community and environment. And finally, with shifts in cultural norms and values, we may see the development of legal systems that better reflect social and environmental justice. As issues such as climate change continue to pose challenges to society, we may see legal systems that prioritize sustainability and environmental protection.