Almost everyone in the aviation industry travels on the airlines as a passenger. Suppose you are killed in an airline disaster. Will your family collect millions of dollars? Will it matter if the flight is international? Should it matter if the airplane crashes into the ocean rather than on land? Are the laws governing international airline disasters fair? Are airline accident lawyers necessary?
In this article, I will address these questions, while highlighting major changes in international airline aviation law. In plain language, I will explain controversial U.S. aviation laws that affect the rights of American litigants, with airline disasters such as TWA 800, Swiss Air 111 and Egypt Air 990, as an example.
Every person's case is different. Indeed most federal courts in the United States will not certify an airline crash case for class-action treatment because everyone suffers different damages. My goal is simply to offer an introductory education about some of the issues confronting Americans after major airline disasters occurring during international flights. This article does not constitute legal advice on any case arising out of any crash. I offer no opinion on the cause of the crash or on the ensuing litigation. Any person who has a claim against an airline must seek the advice of his own or her own aviation lawyer who is experienced in airline crash litigation. This article cannot possibly be used to determine a party's rights or legal options. . I make no effort to discuss the rights, options or limitations of persons outside the United States.
Three of the last major international airline disasters, TWA 800, Swiss Air 111 and Egypt Air 990, involved international flights, which crashed in the ocean after departing from JFK Airport in New York City. The survivors (the families who lost loved ones) were among the first plaintiffs to benefit from major changes in international aviation law that have occurred in last few years. Conversely, some survivors faced limitations on recovery of their losses simply because the aircraft crashed in the ocean rather than on land. This article will first explain the major changes in the law that control claims by passengers in all international airline flights. Because many international crashes occur on the High Seas, I will explain the U.S. federal law that applies to crashes on the "high seas" in U.S. courts.
The Warsaw Convention Controls the Rights of International Airline Accident Victims
An international treaty known as the Warsaw Convention controls the legal rights of international travelers to sue the airlines for injuries suffered on an airliner. The Warsaw Convention is 70 years old. The Convention was originally designed to protect the airlines against excess damage liability. Three recent major airline disasters, TWA 800, Swiss Air 111 and Egypt Air 990, involved international flights covered by the Warsaw Convention. This year the United States Supreme Court confirmed that the Warsaw Convention "exclusively" controls a passenger’s right of recovery in U.S. courts for "physical injuries" sustained on international flights.
The Warsaw Convention applies to passengers ticketed on an international itinerary even if the crash occurs on the domestic part of a continuous international trip. For example, let’s assume an American citizen purchases a round-trip ticket in Seattle for a flight to Mexico City with a change of planes in Los Angeles. If a crash occurred during the Washington to California leg, the Warsaw Convention would still apply because that passenger was embarked on an international flight based on his ticketing to Mexico, although other passengers may have only been ticketed for the Seattle to Los Angeles domestic leg.
For almost 70 years, the families of internationally-ticketed passengers killed in airline disasters were doubly traumatized. First, they lost a loved one in what was often a preventable accident. Second, they discovered a harsh economic reality — the maximum amount of money they could collect from the airline was $75,000 U.S. (Read about a major change infra). No matter how tragic the loss or how glaring the negligence, they could receive only $75,000.00. Comparatively, the family of domestic passengers who died from the same crash could expect to collect millions in U.S. Courts. The only way around this liability limitation was to prove that the airline was guilty of "willful misconduct." Many victims and their lawyers struggled in vain to satisfy this extremely difficult legal burden of proof. Only a few were successful, most notably in the Pan Am 103 disaster, where Pan American Airlines was found liable for willful misconduct in failing to prevent a bomb from being smuggled aboard Flight 103.
In 1991, a United States Federal District Court in Florida found that American Airlines was guilty of "willful misconduct" for the 1995 Cali, Columbia Flight 965, Boeing 757 flight disaster. Apparently, the airline’s pilots crashed into the mountains because they were confused as to their exact location while flying IFR (in clouds). Based on the finding of "willful misconduct," the Flight 965 plaintiffs expected to be able to collect the full measure of their damages. The families of the flight passengers were recently shocked when the United States 11th Circuit U.S. Court of Appeals reversed the Federal District Court Judge in Florida. The appellate judges held that the trial judge employed standards that were too liberal in enabling plaintiffs to establish that the airline was guilty of willful misconduct. Now without proof under the stricter test that the airline’s pilots knowingly flew recklessly, the families may face the traditional $75,000 liability limit.
The United States Signed a Treaty Agreeing to the Warsaw Convention
The Warsaw Convention was the result of a 1929 international air carrier meeting held in Warsaw, Poland. The Convention resulted in a treaty ratified by the United States in 1934. The Convention was an agreement by the airlines to limit their liability for damages to victims of international airline accidents. The fear in 1929 was that a major airline disaster would put a fledgling airline out of business and result in a morass of conflicting legal claims under different countries’ laws. A positive benefit to society from the Convention was the creation of a uniform system of legal jurisdiction for handling international accidents involving physical injury, death and cargo loss. The airlines also achieved a direct pecuniary protection — a liability damage limit for injuries and death based on an artificial monetary unit called a Special Drawing Rights (SDRs.) The airlines agreed to limit their liability to $100,000 SDRs, equivalent in those days to about $8,300 (U.S.). Subsequently in 1966, the limit was raised to $75,000 (U.S.) by the Montreal Agreement that amended the Convention. It was critical to the airlines and their insurers that The Warsaw Convention prevents victims from suing the airlines for punitive damages no matter how reckless the misconduct of the airline's employees.
The Warsaw Convention also protected the airlines by limiting the countries in which the victims could bring a lawsuit. Only countries that qualified under the following requirements could have jurisdiction to rule on Warsaw Convention airline injury or death claims: (1) the place of business where the contract of carriage was entered into. (Usually the place where the tickets were bought), (2) the county which was the destination of the flight, (3) the domicile of the carrier, or (4) the carrier’s principal place of business.
The Warsaw Convention applies only to the airlines and does not control damage claims by victims against other defendants. Thus, the manufacturer of the airliner and the manufacturer of sub-component parts or systems installed in the airliner can be sued without the Convention limitations. Airports, private security companies or other service providers can be sued outside the Convention unless they are found to be performing the airlines’ functions under The Convention. Even the United States government can be sued in U.S. federal courts without Warsaw Convention limitations, as long as the operational negligence of its air traffic controllers, or the non-policy making and non-discretionary functions of its government employees are found to be a cause of the disaster.
For 70 Years, There was Disparity in Airline Liability Law Between Domestic and International Flights
* The family of a passenger who is ticketed for a domestic flight, who is physically injured or killed in a domestic airline accident, whether on a U.S. carrier or a foreign carrier, can sue the airline and collect full measure of compensatory damages permitted by the appropriate state law.
* Prior to 1997, the family of a passenger who was ticketed for an international flight, and was physically injured or killed in an international airline accident, whether on a U.S. carrier or a foreign carrier, could not collect the full measure of damages permitted by U.S. Laws. The plaintiff was limited to recovery of a mere $75,000 (U.S.) pursuant to the Warsaw Convention Treaty.
The inequity imposed on American passengers injured while traveling internationally, was publicized by the efforts of leading aviation plaintiffs attorneys to change the law in this area. The efforts of these attorneys coupled with the growing lobby by airline survivor groups pressured legislators to achieve reform. These pressures led to threats by the United States to pull out of the Warsaw Convention and denounce the treaty. If the United States disavowed the Warsaw Convention, the treaty would unravel and the airlines of the world would be exposed to unlimited liability. There would be chaos in the courts and there would be no binding international treaty controlling which countries would have legal jurisdiction after an international airline disaster. The airlines of the world decided to engage in a little self-regulation to preserve the Warsaw Convention. The airlines struggled to preserve some of the important protections they enjoyed against claims by victims of airline disasters under the Convention. They called upon the International Air Transport Association (IATA) to come up with a plan.
After 1997, the Airlines Voluntarily Entered Into an Intercarrier Agreement Waiving the $75,000 Liability Limit
IATA in cooperation with the United States Department of Transportation sponsored an international intercarrier agreement on passenger liability that was adopted by airlines starting in 1997. Today, over 120 airlines have signed the agreement. The intercarrier agreement removes the $75,000 (U.S.) limit of liability and allows passengers to recover full compensatory damages for physical injury or death in an "accident," according to the laws of their domicile, or place of permanent residence. After 1997, almost all the airlines have agreed that they can be sued for the entire amount of damages that a victim’s country of domicile would normally allow the family to recover. The victims only have to show that the airline was negligent in causing their injuries.
The airlines have only one defense against unlimited compensatory damage liability under the new agreement. They can try to prove that they took "all necessary measures" to prevent the damage. Under U.S. laws, airlines are held to the ‘highest duty of care" because they are "common carriers." Air carriers have such high responsibilities because they hold themselves out to the public at large for common carriage by air. Theoretically given the "highest standard of care," it should be easy to show an airline was negligent because it failed to live up to the standard of care. Similarly, it should be extremely difficult for an airline to prove that it took "all necessary measures" to prevent the damage. Aviation lawyers have hypothesized that perhaps a missile shoot down, an unpreventable act of sabotage or some unforeseeable intervening cause of a crash would be the only circumstances in which an airline might successfully defend against unlimited liability for damages in a Warsaw Convention case.
After 1997, American Passengers Who Are Physically Injured on an International Flight Can Collect For All Proven Damages
As a result of the Intercarrier agreement, victims can collect for all the compensatory damages they can prove. Another unique aspect to the newly-modified Warsaw Convention is the fact that the airlines have strict liability up to $100,000 SDRs. A "Special Drawing Right" is a fluctuating composite unit of money) equivalent to approximately $135,000 for U.S. passengers. The $135,000 benefit is for physical injuries or death of international passengers suffered on the airline or while in the process of embarking or disembarking. The strict liability of the airlines for $100,000 SDRs in U.S. courts can be a "no questions asked" entitlement to payment of the first $135,000 U.S. of their damages. Indeed, after the Swiss Air 111 disaster, Swiss Airlines, which was a signatory to the intercarrier agreement, set precedent by promptly paying $135,000 to each of the victims’ families of Flight 111, without acknowledging its liability for the crash.
What about Accidents on International Flights not Involving Physical Injuries or Mishaps not deemed Accidents?
Airline insurance defense lawyers have successfully defended the airlines and their insurers against various tort claims resulting from wrongdoing on international airline flights that do not rise to the level of an actual "accident." The airlines have always taken the position that various mishaps or illnesses outside their control were not "accidents. " further they argued that emotional distress did not result from physical injury was not a damage payable under the Convention. The United States Supreme Court has supported the airlines in a landmark decision this year. The Supreme Court has held that an "accident" for purposes of the Convention, means "an unexpected or unusual event or happening which is external to the passenger." Thus, where the Warsaw Convention applies, international passengers will not be able to recover against the airline for emotional damage claims where there is no physical injury or for mishaps not caused by airline fault such as illnesses or passenger transgressions. As an example of how confusing the laws can be, Just last year, the Ninth Circuit Court of Appeals in California paved the way for domestic passengers to bring garden variety tort claims (a "tort" is a civil wrong) in U.S. Courts resulting from incidents on domestic airline flights that do not involve "accidents" — just the opposite of international flights.
The Warsaw Convention Needs Further Improvements
The Warsaw Convention is still being modernized. Just this year, major changes were incorporated in the 1999 Montreal Convention that is subject to ratification. Changes being made to modernize Warsaw Convention involve efforts to codify the question of joint liability for co-sharing carriers. Thus, the contracting carrier, the one that sells the ticket and the airline that actually conducts the flight may both be potentially liable under the newly modified Warsaw Convention. Additionally, the modernized Warsaw Convention may create a "Fifth Jurisdiction" wherein victims can bring a lawsuit in their country of domicile or permanent residence. The "Fifth Jurisdiction" would cure the problem of an American abroad who traveled on a foreign carrier from one country to another. Under the Warsaw Convention the family of the traveler abroad would under the traditional jurisdictional requirements, have to sue for his death in the country where he bought his ticket or at the destination. A "5th Jurisdiction" would allow the survivors to sue in U.S. Courts.
Importantly for the airlines, the newly modified convention still protects the airline against punitive damages even after the intercarrier agreement. Passengers may not sue the airlines for punitive damages in a Warsaw Convention case. Airline lawyers will insist that passengers’ damages should be measured by the laws of their domicile despite where they bring their lawsuit. This is a very important issue for the insurers of airlines. Although the United States is known worldwide for state laws that generously compensate air crash victims, many countries where international travelers are domiciled, do not have laws that provide such generous compensation.
Can Plaintiffs Collect Millions after International Airline Disasters?
The new Intercarrier Agreement modifying The Warsaw Convention theoretically exposes the airlines to unlimited liability. But the amount of damages for the plaintiffs is still dependent upon the laws applied by the country that has jurisdiction over the lawsuits. It is dependent upon the extent to which compensatory damages will be recoverable according to the law of the passengers’ domicile (home) or permanent place of residence. In a typical Warsaw Convention case, an American would be subject to recovery of damages under U.S. law; a Danish passenger for example, would collect damages in accordance with the law of Denmark; a Brazilian passenger would collect damages in accordance with the law of Brazil. This may sound straightforward, but these issues can be very complicated in the U.S. courts because of choice of law issues involving a determination of which states’ laws should apply to measure damages.
A U.S. court handling an international air crash case by an American plaintiff under the Warsaw Convention must use "choice of law" principles to determine which state laws in the U.S. will apply to a passenger’s claim. One way airline disaster lawyers earn their fee involves persuading the courts to apply the laws of the more generous states to their clients’ cases. Those attorneys, who represent families of victims not domiciled in the U.S., typically struggle for legal arguments to try to justify applying generous U.S. laws to their clients’ claims instead of the laws of the foreign domicile or permanent residence.
How Generous Are U.S. Laws for the Payment of Air Crash Damages?
Compensatory damages are supposed to pay a victim for the losses suffered because of the harm caused by a wrongdoer. Victims of airline accidents are entitled to collect two types of compensatory damages under the laws of most states in the United States. Injured passengers or the families of decedents can usually collect full pecuniary (economic) damages. Pecuniary damages include medical expenses and lost wages suffered by those who are personally injured. The families of those passengers who were killed can recover pecuniary damages for the lost support no longer provided by the decedent.
In addition to pecuniary damages, most states allow the recovery of non pecuniary (non-economic) damages, which may exceed pecuniary damages. In the case of personal injury victims, non pecuniary damages are recoverable for pain and suffering. In death cases, the families of the decedents are usually allowed the recovery of non pecuniary damages for the loss of care, comfort and society. Some states allow pre-impact (non pecuniary) pain and suffering damages for the time the person consciously suffered after being harmed but before dying.
When the plaintiff is represented by a skillful aviation attorney, the award for non pecuniary damages can be higher than the award for pecuniary damages. The total verdict may be in the millions of dollars, particularly where the decedent was a middle-class or higher wage earner who supported a family. In order to recover such large amounts, here must be a "collectible" defendant with insurance or sufficient assets to pay their damages. The award of non pecuniary damages is usually at the jury’s discretion subject to reduction by a judge if the amount is excessive. Punitive damages are prohibited under the Warsaw Convention and extremely rare in airline crash litigation.
A few states have enacted laws to limit accident victims with regard to recovery of non pecuniary damages. In those few states that impose such limits, the limit per victim, is often in the vicinity of $250,000 to $500,000 for non pecuniary damages. States with limits on non pecuniary damages will usually still allow victims’ families to recover the full amount of their pecuniary damages.
Crashes in the Ocean - The Death on the High Seas Act (DOHSA)
Air crash lawyers must analyze where a crash occurs and whether it was on an international flight. Questions of jurisdiction, venue, the law of liability and the law of damages may be affected by this analysis.
Domestic Crashes on Land: If a passenger dies in a domestic airplane crash on the land. The passenger’s family with proof of negligence has the potential of recovering all of their compensatory damages from the carrier under the state law that applies to their case. They may face defenses and damage limitations controlled by applicable state laws.
International Crashes on Land: If a passenger dies in an airplane crash on the land during an international flight, the passenger’s family can collect the full compensatory damages under the new Warsaw Convention with proof of negligence, plus be assured of payment of the first $135,000 of damages without the need to prove negligence. The passenger may also collect full compensatory damages from all liable parties if not paid by the airline.
Domestic and International Crashes in U.S. Territorial Waters: If a passenger dies in an air crash inside the "territorial waters" of the United States, the passenger’s family can collect their full compensatory damages in most U.S. Courts, according to applicable state or federal law. If the crash occurs on a domestic flight, the only limitations are those peculiar to the particular U.S. law that applies. With a crash into U.S. territorial waters on an international flight, the current provisions of the Warsaw Convention will be applied.
International Crashes on the High Seas: If a passenger dies in an airplane crash on or above the "high seas," The Death On The High Seas Act (DOHSA) applies in U.S. courts. Admiralty law applies. The survivor’s damage recovery was previously restricted to collection of pecuniary loss only. Since 2000, the victims’ families in commercial accidents, can recover for the non-pecuniary loss of care, comfort and society resulting from the death of their loved one. There is no recovery for the pre-impact pain and suffering of the victims as the airplane plummeted to the ocean. In KAL 007 disaster case, the United States Supreme Court held that neither the families nor the estates of the victims can recover non pecuniary damages for the pre-impact pain and suffering suffered by passengers in many airline disasters.
What are the "high seas"?
For decades, federal courts said the high seas were the ocean waters beyond a "marine league" from shore. A marine league is three nautical miles from the shores of the territories of the United States. In 1988, President Reagan issued a "Territorial Sea Proclamation" extending the United States’ sovereignty to a 12-mile territorial sea. The 12 mile limit was applied by the courts to the TWA 800 disaster. TWA 800 crashed inside 12 miles but outside 3 miles. The High Seas are beyond the 12 mile territorial limit from the shore of the United States and its islands.
The Year 2000 Death on the High Seas Act Amendment
The newly amended provisions of DOHSA clarify that crashes within 12 nautical miles of the shores of United States and resulting in wrongful death actions will be judged by those laws in effect in various states and under federal law. Those crashes outside 12 nautical miles from the shores of the United States will still fall under the Death on the High Seas Act. Under the amendment however, compensation for non-pecuniary damages will be allowed in addition to pecuniary damages for commercial crashes.
Non-pecuniary damages will be permitted only for the loss of care, comfort and companionship in death actions arising from commercial aviation accidents. Commercial aviation involves transport "for compensation or hire." Thus where persons are killed in "commercial" accidents on the high seas (typically the airline, commuter and charter passengers) the culpable defendants may be forced to pay non-pecuniary damages on top of pecuniary damages.
General aviation accidents on the high seas involving corporate aircraft and privately owned aircraft are excluded. Helicopter flights over water that do not involve compensation or hire, will not be covered by the amended DOHSA. Similarly, public-use aircraft accidents and military aircraft accidents are still subject to the harsh limitations of the 80-year-old Death on the High Seas Act, whereby only pecuniary damages can be recovered.
The Role of the Airline Accident Plaintiff’s Lawyer
U.S. airlines are good at offering settlements when they face liability after a disaster. When human error causes a disaster, it is not that difficult to prove that an airline is liable. Knowing this, mass disaster law firms specialize in advertising for large numbers of such passenger cases. Survivors should evaluate whether they want an individual lawyer to represent them or accept invitations to retain a mass disaster law firm. Mass disaster law firms often represent large numbers of victims’ families and settle dozens of death cases out of a single disaster with the same insurer. They are especially challenged to obtain distinctive awards of non pecuniary damages when they represent dozens of spouses in negotiating with the same insurance company. While the airlines will now pay sufficient damages for injuries or deaths on both domestic and international flights, the amount paid will depend on the skill of the lawyer at individualizing his client’s damage case. An experienced aviation lawyer should be able to present claims under the most favorable laws and in the best forum. The best lawyers use sophisticated forensic economics theories to distinguish their client’s damage claims from the other passengers.
NOTE: The subjects discussed in this article do not constitute legal advice. My objective is to alert you to some common issues so that you can avoid or minimize legal trouble. Anyone with an aviation law problem should be guided by the advice of his or her lawyer, under applicable federal and state laws, after a full and confidential disclosure of all relevant facts.
System Rules
The Economics of Regulatory Reform:
Termination of Airline Computer Reservation System Rules
The Department of Transportation's announced plan to terminate all federal regulation of airline computer reservation systems (CRS) in 2004 is somewhat surprising in light of modern economic
theories of regulation that highlight barriers to reform. This Article presents evidence on how CRS regulation affects the market for CRS services from the perspectives of both traditional and modern theories of regulation. We conclude that the announcement of a plan to terminate CRS regulations is consistent with traditional theories of regulation in which the government acts to maximize social welfare. We also demonstrate that the traditional approach to evaluating the merits of regulation, as sometimes applied, exhibits a bias toward rule retention by assuming that the relevant alternative to regulation is a state of laissez-faire. In fact, the relevant alternative is typically other forms of intervention by the government, such as antitrust enforcement, which poses as the government's strategic alternative for most if not all prior DOT regulation of CRS markets. Finally, we examine the practical relevance of modern theories of regulation for explaining the recent move towards deregulation. The occurrence of entry and technological change prior to CRS deregulation is of special interest from this perspective. The termination of CRS regulations is indeed consistent both with the traditional theory of deregulation in the public interest and with the modern interest group theory of deregulation in which deregulation is the ultimate conclusion of a process. Other modern theories of regulation appear not to explain the timing of reform in this instance.IMAGE TABLE 1
I. DRAFTING CHOICE-OF-LAW RULES
The European Community Regulation on the Law Applicable to Non-Contractual Obligations ("Rome II") will take effect on January 11, 2009.1 This regulation is part of a widespread effort to draft new choice-of-lawrules. For example, in 2007 a new conflict-of-laws code took effect in Japan.2 China is drafting a comprehensive civil code, which includes choice-of-law rules.3 What should be the objectives of these drafting projects? Should the new rules, as law-and-economics scholars urge, be simple and afford clearly predictable results? Or should choice-of-law rules endeavor to select the jurisdiction that experiences the consequences when the chosen law is applied? A third possibility is to draft rules that provide substantial predictability and are likely to be consistent with a consequences-based approach. Rome II falls into this third category: reasonably predictable results that are likely to give effect to the policies of the jurisdiction that will experience the consequences when the chosen law is applied.
IMAGE TABLE1
I. DRAFTING CHOICE-OF-LAW RULES
The European Community Regulation on the Law Applicable to Non-Contractual Obligations ("Rome II") will take effect on January 11, 2009.1 This regulation is part of a widespread effort to draft new choice-of-law
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rules. For example, in 2007 a new conflict-of-laws code took effect in Japan.2 China is drafting a comprehensive civil code, which includes choice-of-law rules.3 What should be the objectives of these drafting projects? Should the new rules, as law-and-economics scholars urge, be simple and afford clearly predictable results? Or should choice-of-law rules endeavor to select the jurisdiction that experiences the consequences when the chosen law is applied? A third possibility is to draft rules that provide substantial predictability and are likely to be consistent with a consequences-based approach. Rome II falls into this third category: reasonably predictable results that are likely to give effect to the policies of the jurisdiction that will experience the consequences when the chosen law is applied.
There is now an extensive law-and-economics literature devoted to choice of law. Sections II and III summarize this economics approach to drafting conflicts rules and evaluate Rome II under this perspective. Sections IV and V outline a consequences-based approach to choice-of-law and appraise the extent to which Rome II is consistent with this methodology. The Appendix contains the complete text of the Regulation.
II. LAW-AND-ECONOMICS SCHOLARSHIP ON CHOICE OF LAW
In the third edition of his classic work, Economic Analysis of Law,4 Judge-formerly Professor-Richard A. Posner, inserted a one-page section on "Choice of Law."5 He poses a case in which "a resident of State A, while driving in State B, injures a resident of B who sues."6 He states that the law of B should apply because that state has "a comparative regulatory advantage in regard to accidents which occur in B."7 It is likely that by "comparative regulatory advantage" he is referring only to rules of the road, such as speed limits: "Presumably B's Rules are tailored to driving conditions-the state of the roads, weather, etc.-in B."8
Judge Posner goes on to decry the fact that the place of tort rule "has given way in most states to a more complex analysis of the respective 'interests' of the states affected by the suit."9 He then states, "The issue ought not to be interests; it ought to be which state's law makes the best 'fit' with the circumstances of the dispute."10 When explaining what he means by "fit," however, he engages in the very interest analysis that he purports to disapprove, including an inquiry into the purposes of the rule in question.11 He concludes by changing the hypothetical with which he began to "a case where two residents of state A are involved in a collision in state B."12 Judge Posner then departs from the place-of-tort rule in a manner that devotees of interest analysis would applaud: "The tort rules of B will be better adapted to location-specific factors such as the state of the roads and climate conditions, but the tort rules of A will be better adapted to person-specific factors such as ability to take care."13
This short and somewhat self-contradictory statement prompted many law-andeconomics scholars to apply their analyses to choice of law. The key difference between "traditional" and law-and-economics conflicts scholarship is the importance given to choice-of-law rules that produce easily predictable results. In Reich v. Purcell, Chief Justice Traynor of the Supreme Court of California, a devotee of interest analysis, states, "ease of determining applicable law and uniformity of rules of decision, however, must be subordinated to the objective of proper choice of law in conflict cases, i.e., to determine the law that most appropriately applies to the issue involved."14 Most law-and-economics scholars would disagree. They prefer clear choice-of-law rules, such as the place of injury for torts and the situs of land for issues concerning real estate.15 Clear rules, they contend, are efficient because they enable the parties to know before they act which law will apply and to conform their conduct to that law. After a claim arises, clear choice-of-law rules facilitate settlement and reduce the costs of litigation.16 For the same efficiency reasons, lawand-economics scholars would permit contracting parties complete freedom in choosing the law to apply to their transaction.17 Some would permit no judge-made exceptions to enforcement of choice-of-law agreements and reserve to legislatures the power to indicate what mandatory rules are not subject to avoidance.18
Most law-and-economics scholars find modern approaches to choice of law unpredictable, chaotic,19 and prejudiced in favor of plaintiffs and forum law.20 They reject any analysis that focuses on the purposes of underlying conflicting rules because of the difficulty of determining those purposes.21
III. ROME II THROUGH THE LAW-AND-ECONOMICS LENS
Does Rome II satisfy the law-and-economics demand for simple rules leading to easily predictable results? "[Predictability of the outcome of litigation" is the aim of the regulation.22
Article 4 of Rome II states the "general rule":
Article 4: General rule
1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.
2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.
3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.23
Article 4 governs choice of law for non-contractual liabilities that are not covered by other articles on specific forms of liability.24 Four of the articles covering specific liabilities have references to Article 4.25 Thus Article 4 is of central importance in evaluating the regulation.
IMAGE TABLE1
I. DRAFTING CHOICE-OF-LAW RULES
The European Community Regulation on the Law Applicable to Non-Contractual Obligations ("Rome II") will take effect on January 11, 2009.1 This regulation is part of a widespread effort to draft new choice-of-law
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rules. For example, in 2007 a new conflict-of-laws code took effect in Japan.2 China is drafting a comprehensive civil code, which includes choice-of-law rules.3 What should be the objectives of these drafting projects? Should the new rules, as law-and-economics scholars urge, be simple and afford clearly predictable results? Or should choice-of-law rules endeavor to select the jurisdiction that experiences the consequences when the chosen law is applied? A third possibility is to draft rules that provide substantial predictability and are likely to be consistent with a consequences-based approach. Rome II falls into this third category: reasonably predictable results that are likely to give effect to the policies of the jurisdiction that will experience the consequences when the chosen law is applied.
There is now an extensive law-and-economics literature devoted to choice of law. Sections II and III summarize this economics approach to drafting conflicts rules and evaluate Rome II under this perspective. Sections IV and V outline a consequences-based approach to choice-of-law and appraise the extent to which Rome II is consistent with this methodology. The Appendix contains the complete text of the Regulation.
II. LAW-AND-ECONOMICS SCHOLARSHIP ON CHOICE OF LAW
In the third edition of his classic work, Economic Analysis of Law,4 Judge-formerly Professor-Richard A. Posner, inserted a one-page section on "Choice of Law."5 He poses a case in which "a resident of State A, while driving in State B, injures a resident of B who sues."6 He states that the law of B should apply because that state has "a comparative regulatory advantage in regard to accidents which occur in B."7 It is likely that by "comparative regulatory advantage" he is referring only to rules of the road, such as speed limits: "Presumably B's Rules are tailored to driving conditions-the state of the roads, weather, etc.-in B."8
Judge Posner goes on to decry the fact that the place of tort rule "has given way in most states to a more complex analysis of the respective 'interests' of the states affected by the suit."9 He then states, "The issue ought not to be interests; it ought to be which state's law makes the best 'fit' with the circumstances of the dispute."10 When explaining what he means by "fit," however, he engages in the very interest analysis that he purports to disapprove, including an inquiry into the purposes of the rule in question.11 He concludes by changing the hypothetical with which he began to "a case where two residents of state A are involved in a collision in state B."12 Judge Posner then departs from the place-of-tort rule in a manner that devotees of interest analysis would applaud: "The tort rules of B will be better adapted to location-specific factors such as the state of the roads and climate conditions, but the tort rules of A will be better adapted to person-specific factors such as ability to take care."13
This short and somewhat self-contradictory statement prompted many law-andeconomics scholars to apply their analyses to choice of law. The key difference between "traditional" and law-and-economics conflicts scholarship is the importance given to choice-of-law rules that produce easily predictable results. In Reich v. Purcell, Chief Justice Traynor of the Supreme Court of California, a devotee of interest analysis, states, "ease of determining applicable law and uniformity of rules of decision, however, must be subordinated to the objective of proper choice of law in conflict cases, i.e., to determine the law that most appropriately applies to the issue involved."14 Most law-and-economics scholars would disagree. They prefer clear choice-of-law rules, such as the place of injury for torts and the situs of land for issues concerning real estate.15 Clear rules, they contend, are efficient because they enable the parties to know before they act which law will apply and to conform their conduct to that law. After a claim arises, clear choice-of-law rules facilitate settlement and reduce the costs of litigation.16 For the same efficiency reasons, lawand-economics scholars would permit contracting parties complete freedom in choosing the law to apply to their transaction.17 Some would permit no judge-made exceptions to enforcement of choice-of-law agreements and reserve to legislatures the power to indicate what mandatory rules are not subject to avoidance.18
Most law-and-economics scholars find modern approaches to choice of law unpredictable, chaotic,19 and prejudiced in favor of plaintiffs and forum law.20 They reject any analysis that focuses on the purposes of underlying conflicting rules because of the difficulty of determining those purposes.21
III. ROME II THROUGH THE LAW-AND-ECONOMICS LENS
Does Rome II satisfy the law-and-economics demand for simple rules leading to easily predictable results? "[Predictability of the outcome of litigation" is the aim of the regulation.22
Article 4 of Rome II states the "general rule":
Article 4: General rule
1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.
2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.
3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.23
Article 4 governs choice of law for non-contractual liabilities that are not covered by other articles on specific forms of liability.24 Four of the articles covering specific liabilities have references to Article 4.25 Thus Article 4 is of central importance in evaluating the regulation.
Subsection 1 (place of damage) and subsection 2 (unless plaintiff and defendant have the same habitual residence) provide a simple and predictable rule. The problem is the exception in subsection 3 if another country is "more closely connected" to the tort. There is no magic ruler to measure this distance. If Community courts make much use of this exception, the outcomes in similar fact situations are likely to vary. The power of the Court of Justice of the European Communities to forge uniform interpretations of the Regulation will restore predictability,26 but that is likely to be a gradual process over many years. This same "more closely connected" exception also appears in Article 5(2) on product liability, by reference in Article 6(2) on unfair competition affecting exclusively the interests of a specific competitor, and in Articles 10 on unjust enrichment, 11 on negotiorum gestio, and 12 on culpa in contrahendo.
Article 26 provides a "public policy" exception to Rome II's choice-of-law rules.27 Public policy is a wild card. Judges have disagreed whether applying the law of another jurisdiction violates the forum's public policy.28 Moreover, what is a court to do if it rejects the otherwise applicable law under Article 26? Should it dismiss the case without affecting the merits or should it use this excuse to apply its own law? During the time when U.S. courts were in transition from the place-of-wrong choice-of-law rule to a consequences-based approach, some opinions used public policy to reject the law chosen by the territorial rule and applied forum law instead.29 Currently the Supreme Court of Georgia clings to the place-of-wrong conflicts rule for torts, declaring, "The relative certainty, predictability, and ease of the application of lex loci delicti, even though sometimes leading to results which may appear harsh, are preferable to the inconsistency and capriciousness that the replacement choice-of-law approaches have wrought."30 Yet, when the mood moves it, that court uses "public policy" to reject the law of the place of wrong and substitute Georgia law in its stead." The court thus creates the very uncertainty that it purports to eschew, instead of articulating a clear consequences-based reason for the result.
Termination of Airline Computer Reservation System Rules
The Department of Transportation's announced plan to terminate all federal regulation of airline computer reservation systems (CRS) in 2004 is somewhat surprising in light of modern economic
theories of regulation that highlight barriers to reform. This Article presents evidence on how CRS regulation affects the market for CRS services from the perspectives of both traditional and modern theories of regulation. We conclude that the announcement of a plan to terminate CRS regulations is consistent with traditional theories of regulation in which the government acts to maximize social welfare. We also demonstrate that the traditional approach to evaluating the merits of regulation, as sometimes applied, exhibits a bias toward rule retention by assuming that the relevant alternative to regulation is a state of laissez-faire. In fact, the relevant alternative is typically other forms of intervention by the government, such as antitrust enforcement, which poses as the government's strategic alternative for most if not all prior DOT regulation of CRS markets. Finally, we examine the practical relevance of modern theories of regulation for explaining the recent move towards deregulation. The occurrence of entry and technological change prior to CRS deregulation is of special interest from this perspective. The termination of CRS regulations is indeed consistent both with the traditional theory of deregulation in the public interest and with the modern interest group theory of deregulation in which deregulation is the ultimate conclusion of a process. Other modern theories of regulation appear not to explain the timing of reform in this instance.IMAGE TABLE 1
I. DRAFTING CHOICE-OF-LAW RULES
The European Community Regulation on the Law Applicable to Non-Contractual Obligations ("Rome II") will take effect on January 11, 2009.1 This regulation is part of a widespread effort to draft new choice-of-lawrules. For example, in 2007 a new conflict-of-laws code took effect in Japan.2 China is drafting a comprehensive civil code, which includes choice-of-law rules.3 What should be the objectives of these drafting projects? Should the new rules, as law-and-economics scholars urge, be simple and afford clearly predictable results? Or should choice-of-law rules endeavor to select the jurisdiction that experiences the consequences when the chosen law is applied? A third possibility is to draft rules that provide substantial predictability and are likely to be consistent with a consequences-based approach. Rome II falls into this third category: reasonably predictable results that are likely to give effect to the policies of the jurisdiction that will experience the consequences when the chosen law is applied.
IMAGE TABLE1
I. DRAFTING CHOICE-OF-LAW RULES
The European Community Regulation on the Law Applicable to Non-Contractual Obligations ("Rome II") will take effect on January 11, 2009.1 This regulation is part of a widespread effort to draft new choice-of-law
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rules. For example, in 2007 a new conflict-of-laws code took effect in Japan.2 China is drafting a comprehensive civil code, which includes choice-of-law rules.3 What should be the objectives of these drafting projects? Should the new rules, as law-and-economics scholars urge, be simple and afford clearly predictable results? Or should choice-of-law rules endeavor to select the jurisdiction that experiences the consequences when the chosen law is applied? A third possibility is to draft rules that provide substantial predictability and are likely to be consistent with a consequences-based approach. Rome II falls into this third category: reasonably predictable results that are likely to give effect to the policies of the jurisdiction that will experience the consequences when the chosen law is applied.
There is now an extensive law-and-economics literature devoted to choice of law. Sections II and III summarize this economics approach to drafting conflicts rules and evaluate Rome II under this perspective. Sections IV and V outline a consequences-based approach to choice-of-law and appraise the extent to which Rome II is consistent with this methodology. The Appendix contains the complete text of the Regulation.
II. LAW-AND-ECONOMICS SCHOLARSHIP ON CHOICE OF LAW
In the third edition of his classic work, Economic Analysis of Law,4 Judge-formerly Professor-Richard A. Posner, inserted a one-page section on "Choice of Law."5 He poses a case in which "a resident of State A, while driving in State B, injures a resident of B who sues."6 He states that the law of B should apply because that state has "a comparative regulatory advantage in regard to accidents which occur in B."7 It is likely that by "comparative regulatory advantage" he is referring only to rules of the road, such as speed limits: "Presumably B's Rules are tailored to driving conditions-the state of the roads, weather, etc.-in B."8
Judge Posner goes on to decry the fact that the place of tort rule "has given way in most states to a more complex analysis of the respective 'interests' of the states affected by the suit."9 He then states, "The issue ought not to be interests; it ought to be which state's law makes the best 'fit' with the circumstances of the dispute."10 When explaining what he means by "fit," however, he engages in the very interest analysis that he purports to disapprove, including an inquiry into the purposes of the rule in question.11 He concludes by changing the hypothetical with which he began to "a case where two residents of state A are involved in a collision in state B."12 Judge Posner then departs from the place-of-tort rule in a manner that devotees of interest analysis would applaud: "The tort rules of B will be better adapted to location-specific factors such as the state of the roads and climate conditions, but the tort rules of A will be better adapted to person-specific factors such as ability to take care."13
This short and somewhat self-contradictory statement prompted many law-andeconomics scholars to apply their analyses to choice of law. The key difference between "traditional" and law-and-economics conflicts scholarship is the importance given to choice-of-law rules that produce easily predictable results. In Reich v. Purcell, Chief Justice Traynor of the Supreme Court of California, a devotee of interest analysis, states, "ease of determining applicable law and uniformity of rules of decision, however, must be subordinated to the objective of proper choice of law in conflict cases, i.e., to determine the law that most appropriately applies to the issue involved."14 Most law-and-economics scholars would disagree. They prefer clear choice-of-law rules, such as the place of injury for torts and the situs of land for issues concerning real estate.15 Clear rules, they contend, are efficient because they enable the parties to know before they act which law will apply and to conform their conduct to that law. After a claim arises, clear choice-of-law rules facilitate settlement and reduce the costs of litigation.16 For the same efficiency reasons, lawand-economics scholars would permit contracting parties complete freedom in choosing the law to apply to their transaction.17 Some would permit no judge-made exceptions to enforcement of choice-of-law agreements and reserve to legislatures the power to indicate what mandatory rules are not subject to avoidance.18
Most law-and-economics scholars find modern approaches to choice of law unpredictable, chaotic,19 and prejudiced in favor of plaintiffs and forum law.20 They reject any analysis that focuses on the purposes of underlying conflicting rules because of the difficulty of determining those purposes.21
III. ROME II THROUGH THE LAW-AND-ECONOMICS LENS
Does Rome II satisfy the law-and-economics demand for simple rules leading to easily predictable results? "[Predictability of the outcome of litigation" is the aim of the regulation.22
Article 4 of Rome II states the "general rule":
Article 4: General rule
1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.
2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.
3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.23
Article 4 governs choice of law for non-contractual liabilities that are not covered by other articles on specific forms of liability.24 Four of the articles covering specific liabilities have references to Article 4.25 Thus Article 4 is of central importance in evaluating the regulation.
IMAGE TABLE1
I. DRAFTING CHOICE-OF-LAW RULES
The European Community Regulation on the Law Applicable to Non-Contractual Obligations ("Rome II") will take effect on January 11, 2009.1 This regulation is part of a widespread effort to draft new choice-of-law
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rules. For example, in 2007 a new conflict-of-laws code took effect in Japan.2 China is drafting a comprehensive civil code, which includes choice-of-law rules.3 What should be the objectives of these drafting projects? Should the new rules, as law-and-economics scholars urge, be simple and afford clearly predictable results? Or should choice-of-law rules endeavor to select the jurisdiction that experiences the consequences when the chosen law is applied? A third possibility is to draft rules that provide substantial predictability and are likely to be consistent with a consequences-based approach. Rome II falls into this third category: reasonably predictable results that are likely to give effect to the policies of the jurisdiction that will experience the consequences when the chosen law is applied.
There is now an extensive law-and-economics literature devoted to choice of law. Sections II and III summarize this economics approach to drafting conflicts rules and evaluate Rome II under this perspective. Sections IV and V outline a consequences-based approach to choice-of-law and appraise the extent to which Rome II is consistent with this methodology. The Appendix contains the complete text of the Regulation.
II. LAW-AND-ECONOMICS SCHOLARSHIP ON CHOICE OF LAW
In the third edition of his classic work, Economic Analysis of Law,4 Judge-formerly Professor-Richard A. Posner, inserted a one-page section on "Choice of Law."5 He poses a case in which "a resident of State A, while driving in State B, injures a resident of B who sues."6 He states that the law of B should apply because that state has "a comparative regulatory advantage in regard to accidents which occur in B."7 It is likely that by "comparative regulatory advantage" he is referring only to rules of the road, such as speed limits: "Presumably B's Rules are tailored to driving conditions-the state of the roads, weather, etc.-in B."8
Judge Posner goes on to decry the fact that the place of tort rule "has given way in most states to a more complex analysis of the respective 'interests' of the states affected by the suit."9 He then states, "The issue ought not to be interests; it ought to be which state's law makes the best 'fit' with the circumstances of the dispute."10 When explaining what he means by "fit," however, he engages in the very interest analysis that he purports to disapprove, including an inquiry into the purposes of the rule in question.11 He concludes by changing the hypothetical with which he began to "a case where two residents of state A are involved in a collision in state B."12 Judge Posner then departs from the place-of-tort rule in a manner that devotees of interest analysis would applaud: "The tort rules of B will be better adapted to location-specific factors such as the state of the roads and climate conditions, but the tort rules of A will be better adapted to person-specific factors such as ability to take care."13
This short and somewhat self-contradictory statement prompted many law-andeconomics scholars to apply their analyses to choice of law. The key difference between "traditional" and law-and-economics conflicts scholarship is the importance given to choice-of-law rules that produce easily predictable results. In Reich v. Purcell, Chief Justice Traynor of the Supreme Court of California, a devotee of interest analysis, states, "ease of determining applicable law and uniformity of rules of decision, however, must be subordinated to the objective of proper choice of law in conflict cases, i.e., to determine the law that most appropriately applies to the issue involved."14 Most law-and-economics scholars would disagree. They prefer clear choice-of-law rules, such as the place of injury for torts and the situs of land for issues concerning real estate.15 Clear rules, they contend, are efficient because they enable the parties to know before they act which law will apply and to conform their conduct to that law. After a claim arises, clear choice-of-law rules facilitate settlement and reduce the costs of litigation.16 For the same efficiency reasons, lawand-economics scholars would permit contracting parties complete freedom in choosing the law to apply to their transaction.17 Some would permit no judge-made exceptions to enforcement of choice-of-law agreements and reserve to legislatures the power to indicate what mandatory rules are not subject to avoidance.18
Most law-and-economics scholars find modern approaches to choice of law unpredictable, chaotic,19 and prejudiced in favor of plaintiffs and forum law.20 They reject any analysis that focuses on the purposes of underlying conflicting rules because of the difficulty of determining those purposes.21
III. ROME II THROUGH THE LAW-AND-ECONOMICS LENS
Does Rome II satisfy the law-and-economics demand for simple rules leading to easily predictable results? "[Predictability of the outcome of litigation" is the aim of the regulation.22
Article 4 of Rome II states the "general rule":
Article 4: General rule
1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.
2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.
3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.23
Article 4 governs choice of law for non-contractual liabilities that are not covered by other articles on specific forms of liability.24 Four of the articles covering specific liabilities have references to Article 4.25 Thus Article 4 is of central importance in evaluating the regulation.
Subsection 1 (place of damage) and subsection 2 (unless plaintiff and defendant have the same habitual residence) provide a simple and predictable rule. The problem is the exception in subsection 3 if another country is "more closely connected" to the tort. There is no magic ruler to measure this distance. If Community courts make much use of this exception, the outcomes in similar fact situations are likely to vary. The power of the Court of Justice of the European Communities to forge uniform interpretations of the Regulation will restore predictability,26 but that is likely to be a gradual process over many years. This same "more closely connected" exception also appears in Article 5(2) on product liability, by reference in Article 6(2) on unfair competition affecting exclusively the interests of a specific competitor, and in Articles 10 on unjust enrichment, 11 on negotiorum gestio, and 12 on culpa in contrahendo.
Article 26 provides a "public policy" exception to Rome II's choice-of-law rules.27 Public policy is a wild card. Judges have disagreed whether applying the law of another jurisdiction violates the forum's public policy.28 Moreover, what is a court to do if it rejects the otherwise applicable law under Article 26? Should it dismiss the case without affecting the merits or should it use this excuse to apply its own law? During the time when U.S. courts were in transition from the place-of-wrong choice-of-law rule to a consequences-based approach, some opinions used public policy to reject the law chosen by the territorial rule and applied forum law instead.29 Currently the Supreme Court of Georgia clings to the place-of-wrong conflicts rule for torts, declaring, "The relative certainty, predictability, and ease of the application of lex loci delicti, even though sometimes leading to results which may appear harsh, are preferable to the inconsistency and capriciousness that the replacement choice-of-law approaches have wrought."30 Yet, when the mood moves it, that court uses "public policy" to reject the law of the place of wrong and substitute Georgia law in its stead." The court thus creates the very uncertainty that it purports to eschew, instead of articulating a clear consequences-based reason for the result.
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person licensed to practice law."[1] Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain stability, and deliver justice. Working as a lawyer involves the practical application of abstract legal theories and knowledge to solve specific individualized problems, or to advance the interests of those who retain (i.e., hire) lawyers to perform legal services.
The role of the lawyer varies significantly across legal jurisdictions, and so it can be treated here in only the most general terms.[2][3] More information is available in country-specific articles.
Terminology
In practice, legal jurisdictions exercise their right to determine who is recognized as being a lawyer; as a result, the meaning of the term "lawyer" may vary from place to place.
* In New Zealand and Australia the word "lawyer" is used to refer to both barristers and solicitors (whether in private practice or practising as corporate in-house counsel) but not people who do not practice the law.
* In Canada, the word "lawyer" only refers to individuals who have been called to the bar or have qualified as civil law notaries in the province of Quebec. Common law lawyers in Canada may also be known as "barristers and solicitors", but should not be referred to as "attorneys", since that term has a different meaning in Canadian usage. However, in Quebec, civil law advocates (or avocats in French) often call themselves "attorney" and sometimes "barrister and solicitor".
* In England, "lawyer" is used loosely to refer to a broad variety of law-trained persons. It includes practitioners such as barristers, solicitors, legal executives and licensed conveyancers; and people who are involved with the law but do not practise it on behalf of individual clients, such as judges, court clerks, and drafters of legislation.
* In India, the term "lawyer" is often colloquially used, but the official term is "advocate" as prescribed under the Advocates Act, 1961.[5]
* In Scotland, the word "lawyer" refers to a more specific group of legally trained people. It specifically includes advocates and solicitors. In a generic sense, it may also include judges and law-trained support staff.
* In the United States, the term generally refers to attorneys who may practice law; it is never used to refer to patent agents[6] or paralegals.[7]
* Other nations tend to have comparable terms for the analogous concept.
Responsibilities
In most countries, particularly civil law countries, there has been a tradition of giving many legal tasks to a variety of civil law notaries, clerks, and scriveners.[8][9] These countries do not have "lawyers" in the American sense, insofar as that term refers to a single type of general-purpose legal services provider;[10] rather, their legal professions consist of a large number of different kinds of law-trained persons, known as jurists, of which only some are advocates who are licensed to practice in the courts.[11][12][13] It is difficult to formulate accurate generalizations that cover all the countries with multiple legal professions, because each country has traditionally had its own peculiar method of dividing up legal work among all its different types of legal professionals.[14]
Notably, England, the mother of the common law jurisdictions, emerged from the Dark Ages with similar complexity in its legal professions, but then evolved by the 19th century to a single dichotomy between barristers and solicitors. An equivalent dichotomy developed between advocates and procurators in some civil law countries, though these two types did not always monopolize the practice of law as much as barristers and solicitors, in that they always coexisted with civil law notaries.
Several countries that originally had two or more legal professions have since fused or united their professions into a single type of lawyer. Most countries in this category are common law countries, though France, a civil law country, merged together its jurists in 1990 and 1991 in response to Anglo-American competition.[22] In countries with fused professions, a lawyer is usually permitted to carry out all or nearly all the responsibilities listed below.
Oral argument in the courts
Arguing a client's case before a judge or jury in a court of law is the traditional province of the barrister in England, and of advocates in some civil law jurisdictions.[23] However, the boundary between barristers and solicitors has evolved. In England today, the barrister monopoly covers only appellate courts, and barristers must compete directly with solicitors in many trial courts.[24] In countries like the United States that have fused legal professions, there are trial lawyers who specialize in trying cases in court, but trial lawyers do not have a de jure monopoly like barristers.
In some countries, litigants have the option of arguing pro se, or on their own behalf. It is common for litigants to appear unrepresented before certain courts like small claims courts; indeed, many such courts do not allow lawyers to speak for their clients, in an effort to save money for all participants in a small case.[25] In other countries, like Venezuela, no one may appear before a judge unless represented by a lawyer.[26] The advantage of the latter regime is that lawyers are familiar with the court's customs and procedures, and make the legal system more efficient for all involved. Unrepresented parties often damage their own credibility or slow the court down as a result of their inexperience.[27][28]
Research and drafting of court papers
Often, lawyers brief a court in writing on the issues in a case before the issues can be orally argued. They may have to perform extensive research into relevant facts and law while drafting legal papers and preparing for oral argument.
In England, the usual division of labour is that a solicitor will obtain the facts of the case from the client and then brief a barrister (usually in writing).[29] The barrister then researches and drafts the necessary court pleadings (which will be filed and served by the solicitor) and orally argues the case.[30]
In Spain, the procurator merely signs and presents the papers to the court, but it is the advocate who drafts the papers and argues the case.[31]
In some countries, like Japan, a scrivener or clerk may fill out court forms and draft simple papers for lay persons who cannot afford or do not need attorneys, and advise them on how to manage and argue their own cases.[32]
Advocacy (written and oral) in administrative hearings
In most developed countries, the legislature has granted original jurisdiction over highly technical matters to executive branch administrative agencies which oversee such things. As a result, some lawyers have become specialists in administrative law. In a few countries, there is a special category of jurists with a monopoly over this form of advocacy; for example, France formerly had conseil juridiques (who were merged into the main legal profession in 1991).[33] In other countries, like the United States, lawyers have been effectively barred by statute from certain types of administrative hearings in order to preserve their informality.[34]
Client intake and counseling (with regard to pending litigation)
An important aspect of a lawyer's job is developing and managing relationships with clients (or the client's employees, if the lawyer works in-house for a government or corporation). The client-lawyer relationship often begins with an intake interview where the lawyer gets to know the client personally, discovers the facts of the client's case, clarifies what the client wants to accomplish, shapes the client's expectations as to what actually can be accomplished, begins to develop various claims or defenses, and explains his or her fees to the client.[35][36]
In England, only solicitors were traditionally in direct contact with the client.[37] The solicitor retained a barrister if one was necessary and acted as an intermediary between the barrister and the client.[38] In most cases a barrister would be obliged, under what is known as the "cab rank rule", to accept instructions for a case in an area in which they held themselves out as practising, at a court at which they normally appeared and at their usual rates.[39][40]
Legal advice
Legal advice is the application of abstract principles of law to the concrete facts of the client's case in order to advise the client about what they should do next. In many countries, only a properly licensed lawyer may provide legal advice to clients for good consideration, even if no lawsuit is contemplated or is in progress.[41][42][43] Therefore, even conveyancers and corporate in-house counsel must first get a license to practice, though they may actually spend very little of their careers in court. Failure to obey such a rule is the crime of unauthorized practice of law.[44]
In other countries, jurists who hold law degrees are allowed to provide legal advice to individuals or to corporations, and it is irrelevant if they lack a license and cannot appear in court.[45][46] Some countries go further; in England and Wales, there is no general prohibition on the giving of legal advice.[47] Sometimes civil law notaries are allowed to give legal advice, as in Belgium.[48] In many countries, non-jurist accountants may provide what is technically legal advice in tax and accounting matters.[49]
Protecting intellectual property
In virtually all countries, patents, trademarks, industrial designs and other forms of intellectual property must be formally registered with a government agency in order to receive maximum protection under the law. The division of such work among lawyers, licensed non-lawyer jurists/agents, and ordinary clerks or scriveners varies greatly from one country to the next.[32][50]
Negotiating and drafting contracts
In some countries, the negotiating and drafting of contracts is considered to be similar to the provision of legal advice, so that it is subject to the licensing requirement explained above.[51] In others, jurists or notaries may negotiate or draft contracts.[52]
Lawyers in some civil law countries traditionally deprecated "transactional law" or "business law" as beneath them. French law firms developed transactional departments only in the 1990s when they started to lose business to international firms based in the United States and the United Kingdom (where solicitors have always done transactional work).[53]
Conveyancing
Conveyancing is the drafting of the documents necessary for the transfer of real property, such as deeds and mortgages. In some jurisdictions, all real estate transactions must be carried out by a lawyer (or a solicitor where that distinction still exists).[54] Such a monopoly is quite valuable from the lawyer's point of view; historically, conveyancing accounted for about half of English solicitors' income (though this has since changed),[55] and a 1978 study showed that conveyancing "accounts for as much as 80 percent of solicitor-client contact in New South Wales."[56] In most common law jurisdictions outside of the United States, this monopoly arose from an 1804 law[57] that was introduced by William Pitt the Younger as a quid pro quo for the raising of fees on the certification of legal professionals such as barristers, solicitors, attorneys and notaries.[58]
In others, the use of a lawyer is optional and banks, title companies, or realtors may be used instead.[59] In some civil law jurisdictions, real estate transactions are handled by civil law notaries.[60] In England and Wales a special class of legal professional–the licensed conveyancer–is also allowed to carry out conveyancing services for reward.[61]
Carrying out the intent of the deceased
In many countries, only lawyers have the legal authority to draft wills, trusts, and any other documents that ensure the efficient disposition of a person's property after death. In some civil law countries this responsibility is handled by civil law notaries.[52]
In the United States, the estates of the deceased must generally be administered by a court through probate. American lawyers have a profitable monopoly on dispensing advice about probate law (which has been heavily criticized).[62]
Prosecution and defense of criminal suspects
In many civil law countries, prosecutors are trained and employed as part of the judiciary; they are law-trained jurists, but may not necessarily be lawyers in the sense that the word is used in the common law world.[63] In common law countries, prosecutors are usually lawyers holding regular licenses who simply happen to work for the government office that files criminal charges against suspects. Criminal defense lawyers specialize in the defense of those charged with any crimes.[64]
The role of the lawyer varies significantly across legal jurisdictions, and so it can be treated here in only the most general terms.[2][3] More information is available in country-specific articles.
Terminology
In practice, legal jurisdictions exercise their right to determine who is recognized as being a lawyer; as a result, the meaning of the term "lawyer" may vary from place to place.
* In New Zealand and Australia the word "lawyer" is used to refer to both barristers and solicitors (whether in private practice or practising as corporate in-house counsel) but not people who do not practice the law.
* In Canada, the word "lawyer" only refers to individuals who have been called to the bar or have qualified as civil law notaries in the province of Quebec. Common law lawyers in Canada may also be known as "barristers and solicitors", but should not be referred to as "attorneys", since that term has a different meaning in Canadian usage. However, in Quebec, civil law advocates (or avocats in French) often call themselves "attorney" and sometimes "barrister and solicitor".
* In England, "lawyer" is used loosely to refer to a broad variety of law-trained persons. It includes practitioners such as barristers, solicitors, legal executives and licensed conveyancers; and people who are involved with the law but do not practise it on behalf of individual clients, such as judges, court clerks, and drafters of legislation.
* In India, the term "lawyer" is often colloquially used, but the official term is "advocate" as prescribed under the Advocates Act, 1961.[5]
* In Scotland, the word "lawyer" refers to a more specific group of legally trained people. It specifically includes advocates and solicitors. In a generic sense, it may also include judges and law-trained support staff.
* In the United States, the term generally refers to attorneys who may practice law; it is never used to refer to patent agents[6] or paralegals.[7]
* Other nations tend to have comparable terms for the analogous concept.
Responsibilities
In most countries, particularly civil law countries, there has been a tradition of giving many legal tasks to a variety of civil law notaries, clerks, and scriveners.[8][9] These countries do not have "lawyers" in the American sense, insofar as that term refers to a single type of general-purpose legal services provider;[10] rather, their legal professions consist of a large number of different kinds of law-trained persons, known as jurists, of which only some are advocates who are licensed to practice in the courts.[11][12][13] It is difficult to formulate accurate generalizations that cover all the countries with multiple legal professions, because each country has traditionally had its own peculiar method of dividing up legal work among all its different types of legal professionals.[14]
Notably, England, the mother of the common law jurisdictions, emerged from the Dark Ages with similar complexity in its legal professions, but then evolved by the 19th century to a single dichotomy between barristers and solicitors. An equivalent dichotomy developed between advocates and procurators in some civil law countries, though these two types did not always monopolize the practice of law as much as barristers and solicitors, in that they always coexisted with civil law notaries.
Several countries that originally had two or more legal professions have since fused or united their professions into a single type of lawyer. Most countries in this category are common law countries, though France, a civil law country, merged together its jurists in 1990 and 1991 in response to Anglo-American competition.[22] In countries with fused professions, a lawyer is usually permitted to carry out all or nearly all the responsibilities listed below.
Oral argument in the courts
Arguing a client's case before a judge or jury in a court of law is the traditional province of the barrister in England, and of advocates in some civil law jurisdictions.[23] However, the boundary between barristers and solicitors has evolved. In England today, the barrister monopoly covers only appellate courts, and barristers must compete directly with solicitors in many trial courts.[24] In countries like the United States that have fused legal professions, there are trial lawyers who specialize in trying cases in court, but trial lawyers do not have a de jure monopoly like barristers.
In some countries, litigants have the option of arguing pro se, or on their own behalf. It is common for litigants to appear unrepresented before certain courts like small claims courts; indeed, many such courts do not allow lawyers to speak for their clients, in an effort to save money for all participants in a small case.[25] In other countries, like Venezuela, no one may appear before a judge unless represented by a lawyer.[26] The advantage of the latter regime is that lawyers are familiar with the court's customs and procedures, and make the legal system more efficient for all involved. Unrepresented parties often damage their own credibility or slow the court down as a result of their inexperience.[27][28]
Research and drafting of court papers
Often, lawyers brief a court in writing on the issues in a case before the issues can be orally argued. They may have to perform extensive research into relevant facts and law while drafting legal papers and preparing for oral argument.
In England, the usual division of labour is that a solicitor will obtain the facts of the case from the client and then brief a barrister (usually in writing).[29] The barrister then researches and drafts the necessary court pleadings (which will be filed and served by the solicitor) and orally argues the case.[30]
In Spain, the procurator merely signs and presents the papers to the court, but it is the advocate who drafts the papers and argues the case.[31]
In some countries, like Japan, a scrivener or clerk may fill out court forms and draft simple papers for lay persons who cannot afford or do not need attorneys, and advise them on how to manage and argue their own cases.[32]
Advocacy (written and oral) in administrative hearings
In most developed countries, the legislature has granted original jurisdiction over highly technical matters to executive branch administrative agencies which oversee such things. As a result, some lawyers have become specialists in administrative law. In a few countries, there is a special category of jurists with a monopoly over this form of advocacy; for example, France formerly had conseil juridiques (who were merged into the main legal profession in 1991).[33] In other countries, like the United States, lawyers have been effectively barred by statute from certain types of administrative hearings in order to preserve their informality.[34]
Client intake and counseling (with regard to pending litigation)
An important aspect of a lawyer's job is developing and managing relationships with clients (or the client's employees, if the lawyer works in-house for a government or corporation). The client-lawyer relationship often begins with an intake interview where the lawyer gets to know the client personally, discovers the facts of the client's case, clarifies what the client wants to accomplish, shapes the client's expectations as to what actually can be accomplished, begins to develop various claims or defenses, and explains his or her fees to the client.[35][36]
In England, only solicitors were traditionally in direct contact with the client.[37] The solicitor retained a barrister if one was necessary and acted as an intermediary between the barrister and the client.[38] In most cases a barrister would be obliged, under what is known as the "cab rank rule", to accept instructions for a case in an area in which they held themselves out as practising, at a court at which they normally appeared and at their usual rates.[39][40]
Legal advice
Legal advice is the application of abstract principles of law to the concrete facts of the client's case in order to advise the client about what they should do next. In many countries, only a properly licensed lawyer may provide legal advice to clients for good consideration, even if no lawsuit is contemplated or is in progress.[41][42][43] Therefore, even conveyancers and corporate in-house counsel must first get a license to practice, though they may actually spend very little of their careers in court. Failure to obey such a rule is the crime of unauthorized practice of law.[44]
In other countries, jurists who hold law degrees are allowed to provide legal advice to individuals or to corporations, and it is irrelevant if they lack a license and cannot appear in court.[45][46] Some countries go further; in England and Wales, there is no general prohibition on the giving of legal advice.[47] Sometimes civil law notaries are allowed to give legal advice, as in Belgium.[48] In many countries, non-jurist accountants may provide what is technically legal advice in tax and accounting matters.[49]
Protecting intellectual property
In virtually all countries, patents, trademarks, industrial designs and other forms of intellectual property must be formally registered with a government agency in order to receive maximum protection under the law. The division of such work among lawyers, licensed non-lawyer jurists/agents, and ordinary clerks or scriveners varies greatly from one country to the next.[32][50]
Negotiating and drafting contracts
In some countries, the negotiating and drafting of contracts is considered to be similar to the provision of legal advice, so that it is subject to the licensing requirement explained above.[51] In others, jurists or notaries may negotiate or draft contracts.[52]
Lawyers in some civil law countries traditionally deprecated "transactional law" or "business law" as beneath them. French law firms developed transactional departments only in the 1990s when they started to lose business to international firms based in the United States and the United Kingdom (where solicitors have always done transactional work).[53]
Conveyancing
Conveyancing is the drafting of the documents necessary for the transfer of real property, such as deeds and mortgages. In some jurisdictions, all real estate transactions must be carried out by a lawyer (or a solicitor where that distinction still exists).[54] Such a monopoly is quite valuable from the lawyer's point of view; historically, conveyancing accounted for about half of English solicitors' income (though this has since changed),[55] and a 1978 study showed that conveyancing "accounts for as much as 80 percent of solicitor-client contact in New South Wales."[56] In most common law jurisdictions outside of the United States, this monopoly arose from an 1804 law[57] that was introduced by William Pitt the Younger as a quid pro quo for the raising of fees on the certification of legal professionals such as barristers, solicitors, attorneys and notaries.[58]
In others, the use of a lawyer is optional and banks, title companies, or realtors may be used instead.[59] In some civil law jurisdictions, real estate transactions are handled by civil law notaries.[60] In England and Wales a special class of legal professional–the licensed conveyancer–is also allowed to carry out conveyancing services for reward.[61]
Carrying out the intent of the deceased
In many countries, only lawyers have the legal authority to draft wills, trusts, and any other documents that ensure the efficient disposition of a person's property after death. In some civil law countries this responsibility is handled by civil law notaries.[52]
In the United States, the estates of the deceased must generally be administered by a court through probate. American lawyers have a profitable monopoly on dispensing advice about probate law (which has been heavily criticized).[62]
Prosecution and defense of criminal suspects
In many civil law countries, prosecutors are trained and employed as part of the judiciary; they are law-trained jurists, but may not necessarily be lawyers in the sense that the word is used in the common law world.[63] In common law countries, prosecutors are usually lawyers holding regular licenses who simply happen to work for the government office that files criminal charges against suspects. Criminal defense lawyers specialize in the defense of those charged with any crimes.[64]
Legal Education
The educational prerequisites to becoming a lawyer vary greatly from country to country. In some countries, law is taught by a faculty of law, which is a department of a university's general undergraduate college.[65] Law students in those countries pursue a Master or Bachelor of Laws degree. In some countries it is common or even required for students to earn another bachelor's degree at the same time. Nor is the LL.B the sole obstacle; it is often followed by a series of advanced examinations, apprenticeships, and additional coursework at special government institutes.[66]
In other countries, particularly the United States, law is primarily taught at law schools. In the United States[67] and countries following the American model, (such as Canada[68] with the exception of the province of Quebec) law schools are graduate/professional schools where a bachelor's degree is a prerequisite for admission. Most law schools are part of universities but a few are independent institutions. Law schools in the United States (and some in Canada and elsewhere) award graduating students a J.D. (Juris Doctor/Doctor of Jurisprudence) (as opposed to the Bachelor of Laws) as the practitioner's law degree. Many schools also offer post-doctoral law degrees such as the LL.M (Legum Magister/Master of Laws), or the S.J.D. (Scientiae Juridicae Doctor/Doctor of the Science of Law) for students interested in advancing their knowledge and credentials in a specific area of law.[69]
The methods and quality of legal education vary widely. Some countries require extensive clinical training in the form of apprenticeships or special clinical courses.[70] Others do not, like Venezuela.[71] A few countries prefer to teach through assigned readings of judicial opinions (the casebook method) followed by intense in-class cross-examination by the professor (the Socratic method).[72][73] Many others have only lectures on highly abstract legal doctrines, which forces young lawyers to figure out how to actually think and write like a lawyer at their first apprenticeship (or job).[74][75][76] Depending upon the country, a typical class size could range from five students in a seminar to five hundred in a giant lecture room. In the United States, law schools maintain small class sizes, and as such, grant admissions on a more limited and competitive basis.[77]
Some countries, particularly industrialized ones, have a traditional preference for full-time law programs,[78] while in developing countries, students often work full- or part-time to pay the tuition and fees of their part-time law programs.[79][80]
Law schools in developing countries share several common problems, such as an overreliance on practicing judges and lawyers who treat teaching as a part-time hobby (and a concomitant scarcity of full-time law professors);[81][82] incompetent faculty with questionable credentials;[83] and textbooks that lag behind the current state of the law by two or three decades.[84][81]
Earning the right to practice law
Main article: Admission to practice law
Some jurisdictions grant a "diploma privilege" to certain institutions, so that merely earning a degree or credential from those institutions is the primary qualification for practicing law.[85] Mexico allows anyone with a law degree to practice law.[86] However, in a large number of countries, a law student must pass a bar examination (or a series of such examinations) before receiving a license to practice.[85][87][88] In a handful of U.S. states, one may become an attorney (a so-called country lawyer) by simply "reading law" and passing the bar examination, without having to attend law school first (although very few people actually become lawyers that way).[89]
Some countries require a formal apprenticeship with an experienced practitioner, while others do not.[90] For example, a few jurisdictions still allow an apprenticeship in place of any kind of formal legal education (though the number of persons who actually become lawyers that way is increasingly rare).[91]
Career structure
U.S. President Abraham Lincoln is a famous example of a lawyer-turned-politician.
The career structure of lawyers varies widely from one country to the next.
Common law/civil law
In most common law countries, especially those with fused professions, lawyers have many options over the course of their careers. Besides private practice, they can always aspire to becoming a prosecutor, government counsel, corporate in-house counsel, administrative law judge, judge, arbitrator, law professor, or politician.[92] There are also many non-legal jobs which legal training is good preparation for, such as corporate executive, government administrator, investment banker, entrepreneur, or journalist.[93] In developing countries like India, a large majority of law students never actually practice, but simply use their law degree as a foundation for careers in other fields.[94]
In most civil law countries, lawyers generally structure their legal education around their chosen specialty; the boundaries between different types of lawyers are carefully defined and hard to cross. After one earns a law degree, career mobility may be severely constrained.[95] For example, unlike their American counterparts,[96] it is difficult for German judges to leave the bench and become advocates in private practice.[97] Another interesting example is France, where for much of the 20th century, all magistrates were graduates of an elite professional school for judges. Although the French magistracy has begun experimenting with the Anglo-American model of appointing judges from accomplished advocates, the few advocates who have actually joined the bench this way are looked down upon by their colleagues who have taken the traditional route to magistracy.[98]
In a few civil law countries, such as Sweden,[99] the legal profession is not rigorously bifurcated and everyone within it can easily change roles and arenas.
Specialization
In many countries, lawyers are general practitioners who will take almost any kind of case that walks in the door.[100] In others, there has been a tendency since the start of the 20th century for lawyers to specialize early in their careers.[101][102] In countries where specialization is prevalent, many lawyers specialize in representing one side in one particular area of the law; thus, it is common in the United States to hear of plaintiffs' personal injury attorneys.[103]
Organization
Lawyers in private practice generally work in specialized businesses known as law firms,[104] with the exception of English barristers. The vast majority of law firms worldwide are small businesses that range in size from 1 to 10 lawyers.[105] The United States, with its large number of firms with more than 50 lawyers, is an exception.[106] The United Kingdom and Australia are also exceptions, as the UK, Australia and the U.S. are now home to several firms with more than 1,000 lawyers after a wave of mergers in the late 1990s.
Notably, barristers in England and Wales and some states in Australia do not work in "law firms". Those who offer their services to the general public—as opposed to those working "in house"—are required to be self-employed.[107] Most work in groupings known as "sets" or "chambers", where some administrative and marketing costs are shared. An important effect of this different organizational structure is that there is no conflict of interest where barristers in the same chambers work for opposing sides in a case, and in some specialised chambers this is commonplace.
In other countries, particularly the United States, law is primarily taught at law schools. In the United States[67] and countries following the American model, (such as Canada[68] with the exception of the province of Quebec) law schools are graduate/professional schools where a bachelor's degree is a prerequisite for admission. Most law schools are part of universities but a few are independent institutions. Law schools in the United States (and some in Canada and elsewhere) award graduating students a J.D. (Juris Doctor/Doctor of Jurisprudence) (as opposed to the Bachelor of Laws) as the practitioner's law degree. Many schools also offer post-doctoral law degrees such as the LL.M (Legum Magister/Master of Laws), or the S.J.D. (Scientiae Juridicae Doctor/Doctor of the Science of Law) for students interested in advancing their knowledge and credentials in a specific area of law.[69]
The methods and quality of legal education vary widely. Some countries require extensive clinical training in the form of apprenticeships or special clinical courses.[70] Others do not, like Venezuela.[71] A few countries prefer to teach through assigned readings of judicial opinions (the casebook method) followed by intense in-class cross-examination by the professor (the Socratic method).[72][73] Many others have only lectures on highly abstract legal doctrines, which forces young lawyers to figure out how to actually think and write like a lawyer at their first apprenticeship (or job).[74][75][76] Depending upon the country, a typical class size could range from five students in a seminar to five hundred in a giant lecture room. In the United States, law schools maintain small class sizes, and as such, grant admissions on a more limited and competitive basis.[77]
Some countries, particularly industrialized ones, have a traditional preference for full-time law programs,[78] while in developing countries, students often work full- or part-time to pay the tuition and fees of their part-time law programs.[79][80]
Law schools in developing countries share several common problems, such as an overreliance on practicing judges and lawyers who treat teaching as a part-time hobby (and a concomitant scarcity of full-time law professors);[81][82] incompetent faculty with questionable credentials;[83] and textbooks that lag behind the current state of the law by two or three decades.[84][81]
Earning the right to practice law
Main article: Admission to practice law
Some jurisdictions grant a "diploma privilege" to certain institutions, so that merely earning a degree or credential from those institutions is the primary qualification for practicing law.[85] Mexico allows anyone with a law degree to practice law.[86] However, in a large number of countries, a law student must pass a bar examination (or a series of such examinations) before receiving a license to practice.[85][87][88] In a handful of U.S. states, one may become an attorney (a so-called country lawyer) by simply "reading law" and passing the bar examination, without having to attend law school first (although very few people actually become lawyers that way).[89]
Some countries require a formal apprenticeship with an experienced practitioner, while others do not.[90] For example, a few jurisdictions still allow an apprenticeship in place of any kind of formal legal education (though the number of persons who actually become lawyers that way is increasingly rare).[91]
Career structure
U.S. President Abraham Lincoln is a famous example of a lawyer-turned-politician.
The career structure of lawyers varies widely from one country to the next.
Common law/civil law
In most common law countries, especially those with fused professions, lawyers have many options over the course of their careers. Besides private practice, they can always aspire to becoming a prosecutor, government counsel, corporate in-house counsel, administrative law judge, judge, arbitrator, law professor, or politician.[92] There are also many non-legal jobs which legal training is good preparation for, such as corporate executive, government administrator, investment banker, entrepreneur, or journalist.[93] In developing countries like India, a large majority of law students never actually practice, but simply use their law degree as a foundation for careers in other fields.[94]
In most civil law countries, lawyers generally structure their legal education around their chosen specialty; the boundaries between different types of lawyers are carefully defined and hard to cross. After one earns a law degree, career mobility may be severely constrained.[95] For example, unlike their American counterparts,[96] it is difficult for German judges to leave the bench and become advocates in private practice.[97] Another interesting example is France, where for much of the 20th century, all magistrates were graduates of an elite professional school for judges. Although the French magistracy has begun experimenting with the Anglo-American model of appointing judges from accomplished advocates, the few advocates who have actually joined the bench this way are looked down upon by their colleagues who have taken the traditional route to magistracy.[98]
In a few civil law countries, such as Sweden,[99] the legal profession is not rigorously bifurcated and everyone within it can easily change roles and arenas.
Specialization
In many countries, lawyers are general practitioners who will take almost any kind of case that walks in the door.[100] In others, there has been a tendency since the start of the 20th century for lawyers to specialize early in their careers.[101][102] In countries where specialization is prevalent, many lawyers specialize in representing one side in one particular area of the law; thus, it is common in the United States to hear of plaintiffs' personal injury attorneys.[103]
Organization
Lawyers in private practice generally work in specialized businesses known as law firms,[104] with the exception of English barristers. The vast majority of law firms worldwide are small businesses that range in size from 1 to 10 lawyers.[105] The United States, with its large number of firms with more than 50 lawyers, is an exception.[106] The United Kingdom and Australia are also exceptions, as the UK, Australia and the U.S. are now home to several firms with more than 1,000 lawyers after a wave of mergers in the late 1990s.
Notably, barristers in England and Wales and some states in Australia do not work in "law firms". Those who offer their services to the general public—as opposed to those working "in house"—are required to be self-employed.[107] Most work in groupings known as "sets" or "chambers", where some administrative and marketing costs are shared. An important effect of this different organizational structure is that there is no conflict of interest where barristers in the same chambers work for opposing sides in a case, and in some specialised chambers this is commonplace.
Legal Theory
Legal theory
History of law
The history of law is closely connected to the development of civilization. Ancient Egyptian law, dating as far back as 3000 BC, contained a civil code that was probably broken into twelve books. It was based on the concept of Ma'at, characterised by tradition, rhetorical speech, social equality and impartiality.[80] By the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code, which consisted of casuistic statements ("if ... 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, German, and French.[81]
The Old Testament is likely the oldest surviving body of law still relevant to modern legal systems. It dates back to 1280 BC, and takes the form of moral imperatives as recommendations for a good society. The small Greek city-state, Ancient Athens, and from about 8th century BC was the first society to be based on broad inclusion of its citizenry; excluding women and the slave class. However, Athens had no legal science, and no word for "law" as an abstract concept.[82] Yet Ancient Greek law contained major constitutional innovations in the development of democracy.[83]
Roman law was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists, and were highly sophisticated.[84] 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 during Justinian I.[85] Although it declined in significance during the Dark Ages, Roman law was rediscovered around the 11th century when mediæval legal scholars began to research Roman codes and adapt their concepts. In mediæval England, the King's judges developed a body of precedent, which later became the common law. A Europe-wide Lex Mercatoria was formed so that merchants could trade with common standards of practice; rather than with the many splintered facets of local laws. The Lex Mercatoria, a precursor to modern commercial law, emphasised the freedom of contract and alienability of property.[86] As nationalism grew in the 18th and 19th centuries, Lex Mercatoria was incorporated into countries' local law under new civil codes. The French Napoleonic Code and the German 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.[87] EU law is codified in treaties, but develops through the precedent laid down by the European Court of Justice.
The Constitution of India is the longest written constitution for a country, containing 444 articles, 12 schedules, numerous amendments and 117,369 words.
Islamic law and jurisprudence developed during the Middle Ages.[88] The methodology of legal precedent and reasoning by analogy (Qiyas) used in early Islamic law was similar to that of the later English common law system.[89] This was particularly the case for the Maliki school of Islamic law active in North Africa, Islamic Spain and the Emirate of Sicily. Between the 8th and 11th centuries, Maliki law developed several legal institutions that were parallel with later common law institutions.[90]
Ancient India and China represent distinct traditions of law, 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. 100–300 AD) were foundational treatises in India, and comprise texts considered authoritative legal guidance.[91] Manu's central philosophy was tolerance and Pluralism, and was cited across Southeast Asia.[92] This Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire.[93] Malaysia, Brunei, Singapore and Hong Kong also adopted the common law. The eastern Asia legal tradition reflects a unique blend of secular and religious influences.[94] Japan was the first country to begin modernising its legal system along western lines, by importing bits of the French, but mostly the German Civil Code.[95] This partly reflected Germany's status as a rising power in the late 19th century. Similarly, traditional Chinese law gave way to westernisation towards the final years of the Ch'ing dynasty in the form of six private law codes based mainly on the Japanese model of German law.[96] 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 inflates administrative law at the expense of private law rights.[97] Due to rapid industrialisation, today China undergoing a process of reform, at least in terms of economic, if not social and political, rights. A new contract code in 1999 represented a move away from administrative domination.[98] Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organisation.[99]
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."
Jean-Jacques Rousseau, The Social Contract, II, 6.[100]
The philosophy of law is commonly known as jurisprudence. Normative jurisprudence is essentially political philosophy, and asks "what should law be?", while analytic jurisprudence asks "what is law?". 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".[101] Natural lawyers on the other side, 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 entanglement with the notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas and the commentaries of Islamic philosopher and jurist Averroes.[102]
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.[103] Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature".[104] 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".[105] 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 labelled as "moral" or "immoral".[106]
In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law.[107] 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 €500); law tells us what we "should" do. 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.[108] Therefore, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could encompass of all political experience.[109]
Bentham's utilitarian theories remained dominant in law until the 20th century.
Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fictions in The Concept of Law.[110] 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 (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",[111] 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.[112] 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 are best left to sociology, rather than jurisprudence.[113]
Economic analysis of law
In the 18th century Adam Smith presented a philosophical foundation for explaining the relationship between law and economics.[114] The discipline arose partly out of a critique of trade unions and U.S. antitrust law. 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.[115]
Richard Posner, one of the Chicago School, runs a blog with Bank of Sweden Prize winning economist Gary Becker.[116]
The most prominent economic analyst of law is 1991 Nobel Prize winner Ronald Coase, whose first major article, The Nature of the Firm (1937), argued that the reason for the existence of firms (companies, partnerships, etc.) is the existence of transaction costs.[117] Rational individuals trade through bilateral contracts on open markets until the costs of transactions mean that using corporations to produce things is more cost-effective. His second major article, The Problem of Social Cost (1960), 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.[118] Coase used the example of a nuisance case named Sturges v Bridgman, where a noisy sweetmaker and a quiet doctor were neighbours and went to court to see who should have to move.[38] Coase said that regardless of whether the judge ruled that the sweetmaker had to stop using his machinery, or that the doctor had to put up with it, they could strike a mutually beneficial bargain about who moves house that reaches the same outcome of resource distribution. Only the existence of transaction costs may prevent this.[119] So the law ought to pre-empt what would happen, and be guided by the most efficient solution. The idea is that law and regulation are not as important or effective at helping people as lawyers and government planners believe.[120] Coase and others like him wanted a change of approach, to put the burden of proof for positive effects on a government that was intervening in the market, by analysing the costs of action.[121]
Sociology of law
Sociology of law is a diverse field of study that examines the interaction of law with society and overlaps with jurisprudence, economic analysis of law and more specialised subjects such as criminology.[122] The institutions of social construction and legal frameworks are the relevant areas for the discipline's inquiry. At first, legal theorists were suspicious of the discipline. Kelsen attacked one of its founders, Eugen Ehrlich, who sought to make distinct the differences 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 lawyers and courts.[123]
Max Weber in 1917 – Weber began his career as a lawyer, and is regarded as one of the founders of sociology and sociology of law.
Around 1900 Max Weber defined his "scientific" approach to law, identifying the "legal rational form" as a type of domination, not attributable to people but to abstract norms.[124] Legal rationalism was his term for a body of coherent and calculable law which formed a precondition for modern political developments and the modern bureaucratic state and developed in parallel with the growth of capitalism.[122] Another sociologist, Émile Durkheim, wrote in The Division of Labour in Society that as society becomes more complex, the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions.[125] Other notable early legal sociologists included Hugo Sinzheimer, Theodor Geiger, Georges Gurvitch and Leon Petrażycki in Europe, and William Graham Sumner in the U.S.[126]
History of law
The history of law is closely connected to the development of civilization. Ancient Egyptian law, dating as far back as 3000 BC, contained a civil code that was probably broken into twelve books. It was based on the concept of Ma'at, characterised by tradition, rhetorical speech, social equality and impartiality.[80] By the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code, which consisted of casuistic statements ("if ... 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, German, and French.[81]
The Old Testament is likely the oldest surviving body of law still relevant to modern legal systems. It dates back to 1280 BC, and takes the form of moral imperatives as recommendations for a good society. The small Greek city-state, Ancient Athens, and from about 8th century BC was the first society to be based on broad inclusion of its citizenry; excluding women and the slave class. However, Athens had no legal science, and no word for "law" as an abstract concept.[82] Yet Ancient Greek law contained major constitutional innovations in the development of democracy.[83]
Roman law was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists, and were highly sophisticated.[84] 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 during Justinian I.[85] Although it declined in significance during the Dark Ages, Roman law was rediscovered around the 11th century when mediæval legal scholars began to research Roman codes and adapt their concepts. In mediæval England, the King's judges developed a body of precedent, which later became the common law. A Europe-wide Lex Mercatoria was formed so that merchants could trade with common standards of practice; rather than with the many splintered facets of local laws. The Lex Mercatoria, a precursor to modern commercial law, emphasised the freedom of contract and alienability of property.[86] As nationalism grew in the 18th and 19th centuries, Lex Mercatoria was incorporated into countries' local law under new civil codes. The French Napoleonic Code and the German 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.[87] EU law is codified in treaties, but develops through the precedent laid down by the European Court of Justice.
The Constitution of India is the longest written constitution for a country, containing 444 articles, 12 schedules, numerous amendments and 117,369 words.
Islamic law and jurisprudence developed during the Middle Ages.[88] The methodology of legal precedent and reasoning by analogy (Qiyas) used in early Islamic law was similar to that of the later English common law system.[89] This was particularly the case for the Maliki school of Islamic law active in North Africa, Islamic Spain and the Emirate of Sicily. Between the 8th and 11th centuries, Maliki law developed several legal institutions that were parallel with later common law institutions.[90]
Ancient India and China represent distinct traditions of law, 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. 100–300 AD) were foundational treatises in India, and comprise texts considered authoritative legal guidance.[91] Manu's central philosophy was tolerance and Pluralism, and was cited across Southeast Asia.[92] This Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire.[93] Malaysia, Brunei, Singapore and Hong Kong also adopted the common law. The eastern Asia legal tradition reflects a unique blend of secular and religious influences.[94] Japan was the first country to begin modernising its legal system along western lines, by importing bits of the French, but mostly the German Civil Code.[95] This partly reflected Germany's status as a rising power in the late 19th century. Similarly, traditional Chinese law gave way to westernisation towards the final years of the Ch'ing dynasty in the form of six private law codes based mainly on the Japanese model of German law.[96] 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 inflates administrative law at the expense of private law rights.[97] Due to rapid industrialisation, today China undergoing a process of reform, at least in terms of economic, if not social and political, rights. A new contract code in 1999 represented a move away from administrative domination.[98] Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organisation.[99]
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."
Jean-Jacques Rousseau, The Social Contract, II, 6.[100]
The philosophy of law is commonly known as jurisprudence. Normative jurisprudence is essentially political philosophy, and asks "what should law be?", while analytic jurisprudence asks "what is law?". 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".[101] Natural lawyers on the other side, 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 entanglement with the notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas and the commentaries of Islamic philosopher and jurist Averroes.[102]
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.[103] Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature".[104] 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".[105] 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 labelled as "moral" or "immoral".[106]
In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law.[107] 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 €500); law tells us what we "should" do. 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.[108] Therefore, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could encompass of all political experience.[109]
Bentham's utilitarian theories remained dominant in law until the 20th century.
Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fictions in The Concept of Law.[110] 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 (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",[111] 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.[112] 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 are best left to sociology, rather than jurisprudence.[113]
Economic analysis of law
In the 18th century Adam Smith presented a philosophical foundation for explaining the relationship between law and economics.[114] The discipline arose partly out of a critique of trade unions and U.S. antitrust law. 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.[115]
Richard Posner, one of the Chicago School, runs a blog with Bank of Sweden Prize winning economist Gary Becker.[116]
The most prominent economic analyst of law is 1991 Nobel Prize winner Ronald Coase, whose first major article, The Nature of the Firm (1937), argued that the reason for the existence of firms (companies, partnerships, etc.) is the existence of transaction costs.[117] Rational individuals trade through bilateral contracts on open markets until the costs of transactions mean that using corporations to produce things is more cost-effective. His second major article, The Problem of Social Cost (1960), 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.[118] Coase used the example of a nuisance case named Sturges v Bridgman, where a noisy sweetmaker and a quiet doctor were neighbours and went to court to see who should have to move.[38] Coase said that regardless of whether the judge ruled that the sweetmaker had to stop using his machinery, or that the doctor had to put up with it, they could strike a mutually beneficial bargain about who moves house that reaches the same outcome of resource distribution. Only the existence of transaction costs may prevent this.[119] So the law ought to pre-empt what would happen, and be guided by the most efficient solution. The idea is that law and regulation are not as important or effective at helping people as lawyers and government planners believe.[120] Coase and others like him wanted a change of approach, to put the burden of proof for positive effects on a government that was intervening in the market, by analysing the costs of action.[121]
Sociology of law
Sociology of law is a diverse field of study that examines the interaction of law with society and overlaps with jurisprudence, economic analysis of law and more specialised subjects such as criminology.[122] The institutions of social construction and legal frameworks are the relevant areas for the discipline's inquiry. At first, legal theorists were suspicious of the discipline. Kelsen attacked one of its founders, Eugen Ehrlich, who sought to make distinct the differences 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 lawyers and courts.[123]
Max Weber in 1917 – Weber began his career as a lawyer, and is regarded as one of the founders of sociology and sociology of law.
Around 1900 Max Weber defined his "scientific" approach to law, identifying the "legal rational form" as a type of domination, not attributable to people but to abstract norms.[124] Legal rationalism was his term for a body of coherent and calculable law which formed a precondition for modern political developments and the modern bureaucratic state and developed in parallel with the growth of capitalism.[122] Another sociologist, Émile Durkheim, wrote in The Division of Labour in Society that as society becomes more complex, the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions.[125] Other notable early legal sociologists included Hugo Sinzheimer, Theodor Geiger, Georges Gurvitch and Leon Petrażycki in Europe, and William Graham Sumner in the U.S.[126]
Legal Institutions
"It is a real unity of them all in one and the same person, made by covenant of every man with every man, in such manner as if every man should say to every man: 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
Law is less a body of static rules than a "dynamic process by which rules are constantly changed, created, and molded to fit particular situations."[127] Changes are continuously made by various institutions in a society. Law's main institutions in liberal democracies are the independent judiciaries, the justice systems, the representative legislatures or parliaments, an accountable executive, a competent and non-corrupt bureaucracy, a police force, a civilian control of the military and a robust legal profession ensuring people's access to justice and a pluralistic civil society—a term used to refer to the social institutions, communities and partnerships that form law's political basis.[128]
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.[129] Their principle was that no person should be able to usurp all powers of the state, in contrast to the absolutist theory of Thomas Hobbes' Leviathan.[130] Max Weber and others reshaped thinking on the extension of state. 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. Modern international organisations tend to focus on the importance of rule of law and good governance, while other authors explore the relation of rule of law and efficient governance in modern states.[131]
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. In the United States, this is the Supreme Court;[132] in Australia, the High Court; in the UK, the House of Lords;[133] in Germany, the Bundesverfassungsgericht; in France, the Cour de Cassation.[134] For most European countries the European Court of Justice in Luxembourg can overrule national law, when EU law is relevant. 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.[135]
The judges of the International Court of Justice in the Hague
Some countries allow their highest judicial authority to over-rule legislation they determined as unconstitutional. In Roe v Wade, the U.S. Supreme Court overturned a Texas law which forbade the granting of assistance to women seeking abortion.[136] The U.S.'s constitution's fourteenth amendment was interpreted to give Americans a right to privacy, and thus a woman's right to choose abortion.
A judiciary is theoretically bound by the constitution, much as legislative bodies are. 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.[137] In communist states, such as China, the courts are often regarded as parts of the executive, or subservient to the legislature; governmental institutions and actors exert thus various forms of influence on the judiciary.[138] In Muslim countries, courts often examine whether state laws adhere to the Sharia: the Supreme Constitutional Court of Egypt may invalidate such laws,[139] and in Iran the Guardian Council ensures the compatibility of the legislation with the "criteria of Islam".[140]
Legislature
Prominent examples of legislatures are the Houses of Parliament in London, the Congress in Washington D.C., the Bundestag in Berlin, the Duma in Moscow, the Parlamento Italiano in Rome and the Assemblée nationale in Paris. 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. In the 'lower house' politicians are elected to represent smaller constituencies. 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.[141]
To pass legislation, a majority of Members of Parliament must vote for a bill (proposed law) in each house. 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 will be required, making changes to the law more difficult. A government usually leads the process, which can be formed from Members of Parliament (e.g. the UK or Germany). But in a presidential system, an executive appoints a cabinet to govern from his or her political allies whether or not they are elected (e.g. the United States or Brazil), and the legislature's role is reduced to either ratification or veto.[142]
Executive
The executive in a legal system serve as a government's centre of political authority. 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 chosen by the Prime Minister or Chancellor, whoes 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. The head of state is apart from the executive, and he/she usually lacks formal political power yet symbolically enacts laws and acts as representative of the nation. Examples include the German president (appointed by the Parliament); the Queen of the United Kingdom (a hereditary title), and the Austrian president (elected by popular vote). The other important model is the presidential system, found in France, the U.S. and Russia. In presidential systems, the executive acts as both head of state and head of government, and has power to appoint an unelected cabinet. Under a presidential system, the executive branch is separate from the legislature to which is not accountable.[143]
Although the role of the executive varies from country to country, usually it will propose the majority of legislation, and propose government agenda. In presidential systems, the executive often has the power to veto legislation. Most executives in both systems are responsible for foreign relations, the military and police, and the bureaucracy. Ministers or other officials head a country's public offices, such as a foreign ministry or interior ministry. The election of a different executive is therefore capable of revolutionising an entire country's approach to government.
Military and police
While military organizations have existed as long as government itself, the idea of a standing police force is relatively modern concept. Mediæval England's system of traveling criminal courts, or assizes, used show trials and public executions to instill communities with fear to maintain control.[144] The first modern police were probably those in 17th century Paris, in the court of Louis XIV,[145] although the Paris Prefecture of Police claim they were the world's first uniformed policemen.[146]
Weber famously argued that the state is that which controls the legitimate monopoly of the means of violence.[147] The military and police carry out enforcement at the request of the government or the courts. The term failed state refers to states that cannot implement or enforce policies; their police and military no longer control security and order and society moves into anarchy, the absence of government.[148]
Bureaucracy
The United Nations' New York headquarters houses civil servants that serve its 192 member states.
The etymology of "bureaucracy" derives from the French word for "office" (bureau) and the Ancient Greek for word "power" (kratos).[149] Like the military and police, a legal system's government servants and bodies that make up its bureaucracy carry out the directives of the executive. One of the earliest references to the concept was made by Baron de Grimm, a German author who lived in France. In 1765 he wrote,
"The real spirit of the laws in France is that bureaucracy of which the late Monsieur de Gournay used to complain so greatly; here the offices, clerks, secretaries, inspectors and intendants are not appointed to benefit the public interest, indeed the public interest appears to have been established so that offices might exist."[150]
Cynicism over "officialdom" is still common, and the workings of public servants is typically contrasted to private enterprise motivated by profit.[151] In fact private companies, especially large ones, also have bureaucracies.[152] Negative perceptions of "red tape" aside, public services such as schooling, health care, policing or public transport are a crucial state function making public bureaucratic action the locus of government power.[152] Writing in the early 20th century, Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support.[153] Weber wrote that the typical characteristics of modern bureaucracy are that officials define its mission, the scope of work is bound by rules, management is composed of career experts, who manage top down, communicating through writing and binding public servants' discretion with rules.[154]
Legal profession
In civil law systems such as those of France, Germany, Italy, Spain and Greece, there is a distinct category of notary, a legally trained public official, compensated by the parties to a transaction.[155] This is a 16th century painting of such a notary by Flemish painter Quentin Massys.
A corollary of the rule of law is the existence of a legal profession sufficiently autonomous to be able to invoke the authority of the independent judiciary; the right to assistance of an advocate in a court proceeding emanates from this corollary—in England the function of barrister or advocate is distinguished from legal counselor (solicitor).[156] As the 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.[157] 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. Modern lawyers achieve distinct professional identity through specified legal procedures (e.g. successfully passing a qualifying examination), are required by law to have a special qualification (a legal education earning the student a Bachelor of Laws, a Bachelor of Civil Law or a Juris Doctor degree[158]), and are constituted in office by legal forms of appointment (being admitted to the bar). Most Muslim countries have developed similar rules about legal education and the legal profession, but some of them still allow lawyers with training in traditional Islamic law to practice law before personal status law courts.[159] In China and other developing countries there are not enough law-trained people to staff the existing judicial systems, and, accordingly, formal standards are more relaxed.[160]
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 library, 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 (including ADR techniques) are also important to legal practice, depending on the field.[161]
Civil society
Classical republican concept of "civil society" dates back to Hobbes and Locke.[162] Locke saw civil society as people who have "a common established law and judicature to appeal to, with authority to decide controversies between them."[163] German philosopher Georg Wilhelm Friedrich Hegel distinguished the "state" from "civil society" (burgerliche Gesellschaft) in Elements of the Philosophy of Right.[164] Hegel believed that civil society and the state were polar opposites, within the scheme of his dialectic theory of history. The modern dipole state–civil society was reproduced in the theories of Alexis de Tocqueville and Karl Marx.[165][166] Nowadays in post-modern theory civil society is necessarily a source of law, by being the basis from which people form opinions and lobby for what they believe law should be. As Australian barrister and author Geoffrey Robertson QC wrote of international law,
"one of its primary modern sources is found in the responses of ordinary men and women, and of the non-governmental organizations which many of them support, to the human rights abuses they see on the television screen in their living rooms."[167]
Freedom of speech, freedom of association and many other individual rights allow people to gather, discuss, criticise and hold to account their governments, from which the basis of a deliberative democracy is formed. The more people are involved with, concerned by and capable of changing how political power is exercised over their lives, the more acceptable and legitimate the law becomes to the people. The most familiar institutions of civil society include economic markets, profit-oriented firms, families, trade unions, hospitals, universities, schools, charities, debating clubs, non-governmental organisations, neighbourhouds, churches and religious associations.[168]
Thomas Hobbes, Leviathan, XVII
Law is less a body of static rules than a "dynamic process by which rules are constantly changed, created, and molded to fit particular situations."[127] Changes are continuously made by various institutions in a society. Law's main institutions in liberal democracies are the independent judiciaries, the justice systems, the representative legislatures or parliaments, an accountable executive, a competent and non-corrupt bureaucracy, a police force, a civilian control of the military and a robust legal profession ensuring people's access to justice and a pluralistic civil society—a term used to refer to the social institutions, communities and partnerships that form law's political basis.[128]
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.[129] Their principle was that no person should be able to usurp all powers of the state, in contrast to the absolutist theory of Thomas Hobbes' Leviathan.[130] Max Weber and others reshaped thinking on the extension of state. 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. Modern international organisations tend to focus on the importance of rule of law and good governance, while other authors explore the relation of rule of law and efficient governance in modern states.[131]
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. In the United States, this is the Supreme Court;[132] in Australia, the High Court; in the UK, the House of Lords;[133] in Germany, the Bundesverfassungsgericht; in France, the Cour de Cassation.[134] For most European countries the European Court of Justice in Luxembourg can overrule national law, when EU law is relevant. 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.[135]
The judges of the International Court of Justice in the Hague
Some countries allow their highest judicial authority to over-rule legislation they determined as unconstitutional. In Roe v Wade, the U.S. Supreme Court overturned a Texas law which forbade the granting of assistance to women seeking abortion.[136] The U.S.'s constitution's fourteenth amendment was interpreted to give Americans a right to privacy, and thus a woman's right to choose abortion.
A judiciary is theoretically bound by the constitution, much as legislative bodies are. 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.[137] In communist states, such as China, the courts are often regarded as parts of the executive, or subservient to the legislature; governmental institutions and actors exert thus various forms of influence on the judiciary.[138] In Muslim countries, courts often examine whether state laws adhere to the Sharia: the Supreme Constitutional Court of Egypt may invalidate such laws,[139] and in Iran the Guardian Council ensures the compatibility of the legislation with the "criteria of Islam".[140]
Legislature
Prominent examples of legislatures are the Houses of Parliament in London, the Congress in Washington D.C., the Bundestag in Berlin, the Duma in Moscow, the Parlamento Italiano in Rome and the Assemblée nationale in Paris. 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. In the 'lower house' politicians are elected to represent smaller constituencies. 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.[141]
To pass legislation, a majority of Members of Parliament must vote for a bill (proposed law) in each house. 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 will be required, making changes to the law more difficult. A government usually leads the process, which can be formed from Members of Parliament (e.g. the UK or Germany). But in a presidential system, an executive appoints a cabinet to govern from his or her political allies whether or not they are elected (e.g. the United States or Brazil), and the legislature's role is reduced to either ratification or veto.[142]
Executive
The executive in a legal system serve as a government's centre of political authority. 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 chosen by the Prime Minister or Chancellor, whoes 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. The head of state is apart from the executive, and he/she usually lacks formal political power yet symbolically enacts laws and acts as representative of the nation. Examples include the German president (appointed by the Parliament); the Queen of the United Kingdom (a hereditary title), and the Austrian president (elected by popular vote). The other important model is the presidential system, found in France, the U.S. and Russia. In presidential systems, the executive acts as both head of state and head of government, and has power to appoint an unelected cabinet. Under a presidential system, the executive branch is separate from the legislature to which is not accountable.[143]
Although the role of the executive varies from country to country, usually it will propose the majority of legislation, and propose government agenda. In presidential systems, the executive often has the power to veto legislation. Most executives in both systems are responsible for foreign relations, the military and police, and the bureaucracy. Ministers or other officials head a country's public offices, such as a foreign ministry or interior ministry. The election of a different executive is therefore capable of revolutionising an entire country's approach to government.
Military and police
While military organizations have existed as long as government itself, the idea of a standing police force is relatively modern concept. Mediæval England's system of traveling criminal courts, or assizes, used show trials and public executions to instill communities with fear to maintain control.[144] The first modern police were probably those in 17th century Paris, in the court of Louis XIV,[145] although the Paris Prefecture of Police claim they were the world's first uniformed policemen.[146]
Weber famously argued that the state is that which controls the legitimate monopoly of the means of violence.[147] The military and police carry out enforcement at the request of the government or the courts. The term failed state refers to states that cannot implement or enforce policies; their police and military no longer control security and order and society moves into anarchy, the absence of government.[148]
Bureaucracy
The United Nations' New York headquarters houses civil servants that serve its 192 member states.
The etymology of "bureaucracy" derives from the French word for "office" (bureau) and the Ancient Greek for word "power" (kratos).[149] Like the military and police, a legal system's government servants and bodies that make up its bureaucracy carry out the directives of the executive. One of the earliest references to the concept was made by Baron de Grimm, a German author who lived in France. In 1765 he wrote,
"The real spirit of the laws in France is that bureaucracy of which the late Monsieur de Gournay used to complain so greatly; here the offices, clerks, secretaries, inspectors and intendants are not appointed to benefit the public interest, indeed the public interest appears to have been established so that offices might exist."[150]
Cynicism over "officialdom" is still common, and the workings of public servants is typically contrasted to private enterprise motivated by profit.[151] In fact private companies, especially large ones, also have bureaucracies.[152] Negative perceptions of "red tape" aside, public services such as schooling, health care, policing or public transport are a crucial state function making public bureaucratic action the locus of government power.[152] Writing in the early 20th century, Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support.[153] Weber wrote that the typical characteristics of modern bureaucracy are that officials define its mission, the scope of work is bound by rules, management is composed of career experts, who manage top down, communicating through writing and binding public servants' discretion with rules.[154]
Legal profession
In civil law systems such as those of France, Germany, Italy, Spain and Greece, there is a distinct category of notary, a legally trained public official, compensated by the parties to a transaction.[155] This is a 16th century painting of such a notary by Flemish painter Quentin Massys.
A corollary of the rule of law is the existence of a legal profession sufficiently autonomous to be able to invoke the authority of the independent judiciary; the right to assistance of an advocate in a court proceeding emanates from this corollary—in England the function of barrister or advocate is distinguished from legal counselor (solicitor).[156] As the 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.[157] 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. Modern lawyers achieve distinct professional identity through specified legal procedures (e.g. successfully passing a qualifying examination), are required by law to have a special qualification (a legal education earning the student a Bachelor of Laws, a Bachelor of Civil Law or a Juris Doctor degree[158]), and are constituted in office by legal forms of appointment (being admitted to the bar). Most Muslim countries have developed similar rules about legal education and the legal profession, but some of them still allow lawyers with training in traditional Islamic law to practice law before personal status law courts.[159] In China and other developing countries there are not enough law-trained people to staff the existing judicial systems, and, accordingly, formal standards are more relaxed.[160]
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 library, 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 (including ADR techniques) are also important to legal practice, depending on the field.[161]
Civil society
Classical republican concept of "civil society" dates back to Hobbes and Locke.[162] Locke saw civil society as people who have "a common established law and judicature to appeal to, with authority to decide controversies between them."[163] German philosopher Georg Wilhelm Friedrich Hegel distinguished the "state" from "civil society" (burgerliche Gesellschaft) in Elements of the Philosophy of Right.[164] Hegel believed that civil society and the state were polar opposites, within the scheme of his dialectic theory of history. The modern dipole state–civil society was reproduced in the theories of Alexis de Tocqueville and Karl Marx.[165][166] Nowadays in post-modern theory civil society is necessarily a source of law, by being the basis from which people form opinions and lobby for what they believe law should be. As Australian barrister and author Geoffrey Robertson QC wrote of international law,
"one of its primary modern sources is found in the responses of ordinary men and women, and of the non-governmental organizations which many of them support, to the human rights abuses they see on the television screen in their living rooms."[167]
Freedom of speech, freedom of association and many other individual rights allow people to gather, discuss, criticise and hold to account their governments, from which the basis of a deliberative democracy is formed. The more people are involved with, concerned by and capable of changing how political power is exercised over their lives, the more acceptable and legitimate the law becomes to the people. The most familiar institutions of civil society include economic markets, profit-oriented firms, families, trade unions, hospitals, universities, schools, charities, debating clubs, non-governmental organisations, neighbourhouds, churches and religious associations.[168]
Definition of LAW
For other uses, see Law (disambiguation) and Legal (disambiguation).
Lady Justice is the symbol of the judiciary.[1][2] Justice is depicted as a goddess equipped with three symbols of the rule of law: a sword symbolizing the court's coercive power; scales representing the weighing of competing claims; and a blindfold indicating impartiality.[3]
Law[4] is a system of rules, usually enforced through a set of institutions.[5] It shapes politics, economics and society in numerous ways and serves as a primary social mediator in relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law defines rights and obligations related to the transfer and title of personal and real property. Trust law applies to assets held for investment and financial security, while tort law allows claims for compensation if a person's rights or property are harmed. If the harm is criminalised in penal code, criminal law offers means by which the state can prosecute the perpetrator. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies, while international law governs affairs between sovereign nation states in activities ranging from trade to environmental regulation or military action. Writing in 350 BC, the Greek philosopher Aristotle declared, "The rule of law is better than the rule of any individual."[6]
Legal systems elaborate rights and responsibilities in a variety of ways. A general distinction can be made between civil law jurisdictions, which codify their laws, and common law systems, where judge made law is not consolidated. In some countries, religion still informs the law. Law provides a rich source of scholarly inquiry, such as legal history and philosophy, or social scientific perspectives such as economic analysis of law or the sociology of law. The study of law raises important and complex issues concerning equality, fairness, liberty and justice. "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."[7] In a typical democracy, the central institutions for interpreting and creating law are the three main branches of government, namely an impartial judiciary, a democratic legislature, and an accountable executive. To implement and enforce the law and provide services to the public, a government's bureaucracy, the military and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress.
From Wikipedia, the free encyclopedia
Lady Justice is the symbol of the judiciary.[1][2] Justice is depicted as a goddess equipped with three symbols of the rule of law: a sword symbolizing the court's coercive power; scales representing the weighing of competing claims; and a blindfold indicating impartiality.[3]
Law[4] is a system of rules, usually enforced through a set of institutions.[5] It shapes politics, economics and society in numerous ways and serves as a primary social mediator in relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law defines rights and obligations related to the transfer and title of personal and real property. Trust law applies to assets held for investment and financial security, while tort law allows claims for compensation if a person's rights or property are harmed. If the harm is criminalised in penal code, criminal law offers means by which the state can prosecute the perpetrator. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies, while international law governs affairs between sovereign nation states in activities ranging from trade to environmental regulation or military action. Writing in 350 BC, the Greek philosopher Aristotle declared, "The rule of law is better than the rule of any individual."[6]
Legal systems elaborate rights and responsibilities in a variety of ways. A general distinction can be made between civil law jurisdictions, which codify their laws, and common law systems, where judge made law is not consolidated. In some countries, religion still informs the law. Law provides a rich source of scholarly inquiry, such as legal history and philosophy, or social scientific perspectives such as economic analysis of law or the sociology of law. The study of law raises important and complex issues concerning equality, fairness, liberty and justice. "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."[7] In a typical democracy, the central institutions for interpreting and creating law are the three main branches of government, namely an impartial judiciary, a democratic legislature, and an accountable executive. To implement and enforce the law and provide services to the public, a government's bureaucracy, the military and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress.
From Wikipedia, the free encyclopedia
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