UE–414: LAW AND REGULATORY CONTROL STUDIES
By
RAVINDAR KUMAR
Assistant Professor
Department of Architecture and Planning
NED University of Engineering and Technology
2010
LECTURE # 01
INTRODUCTION:
The most important theme of this course that needs comprehension is the understanding about Law. In the following the concept of Law is explained in detail for the understanding of the students of urban engineering studying law and regulatory control studies.
Law is a system of rules, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. There are various types of laws and its implications. For instance:
- Contract law regulates everything.
- 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 a statute, 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
- Iternational law governs affairs between sovereign nation states in activities ranging from trade to environmental regulation or military action.
LEGAL SUBJECTS:
All legal systems deal with the same basic issues, but each country categorises and identifies its legal subjects in different ways.
A common distinction is that between "public law" (a term related closely to the state, and including constitutional, administrative and criminal law), and "private law" (which covers contract, tort and property). In civil law systems, contract and tort fall under a general law of obligations, while trusts law is dealt with under statutory regimes or international conventions. International, constitutional and administrative law, criminal law, contract, tort, property law and trusts are regarded as the "traditional core subjects".
INTERNATIONAL LAW:
International law can refer to three things:
- public international law,
- private international law or conflict of laws and
- the law of supranational organisations.
PUBLIC INTERNATIONAL LAW concerns relationships between sovereign nations. The sources for public international law development are custom, practice and treaties between sovereign nations, such as the Geneva Conventions. Public international law can be formed by international organisations, such as the United Nations, the International Labour Organisation, the World Trade Organisation, or the International Monetary Fund. Public international law has a special status as law because there is no international police force, and courts (e.g. the International Court of Justice as the primary UN judicial organ) lack the capacity to penalise disobedience. However, a few bodies, such as the WTO, have effective systems of binding arbitration and dispute resolution backed up by trade sanctions.
CONFLICT OF LAWS (OR "PRIVATE INTERNATIONAL LAW" IN CIVIL LAW COUNTRIES) concerns which jurisdiction a legal dispute between private parties should be heard in and which jurisdiction's law should be applied. Today, businesses are increasingly capable of shifting capital and labour supply chains across borders, as well as trading with overseas businesses, making the question of which country has jurisdiction even more pressing. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958.
EUROPEAN UNION LAW is the first and, so far, only example of a supranational legal framework. Given the trend of increasing global economic integration, many regional agreements—especially the Union of South American Nations—are on track to follow the same model. In the EU, sovereign nations have gathered their authority in a system of courts and political institutions. These institutions are allowed the ability to enforce legal norms either against or for member states and citizens in a manner which is not possible through public international law. As the European Court of Justice said in the 1960s, European Union law constitutes "a new legal order of international law" for the mutual social and economic benefit of the member states.
CONSTITUTIONAL AND ADMINISTRATIVE LAW:
Constitutional and administrative law govern the affairs of the state.
- Constitutional law concerns both the relationships between the executive, legislature and judiciary and the human rights or civil liberties of individuals against the state.
- A "constitution" is simply those laws which constitute the body politic, from statute, case law and convention. The fundamental constitutional principle holds that the individual can do anything but that which is forbidden by law, and the state may do nothing but that which is authorised by law.
- Administrative law is the chief method for people to hold state bodies to account. People can apply for judicial review of actions or decisions by local councils, public services or government ministries, to ensure that they comply with the law.
CRIMINAL LAW:
Criminal law, also known as penal law, pertains to crimes and punishment. It thus regulates the definition of and penalties for offences found to have a sufficiently deleterious social impact but, in itself, make no moral judgement on an offender nor impose restrictions on society that physically prevents people from committing a crime in the first place. Investigating, apprehending, charging, and trying suspected offenders are regulated by the law of criminal procedure.
The paradigm case of a crime lies in the proof, beyond reasonable doubt, that a person is guilty of two things.
- First, the accused must commit an act which is deemed by society to be criminal or guilty act.
- Second, the accused must have the requisite malicious intent to do a criminal act, or guilty mind. However for so called "strict liability" crimes, a guilty act is enough.
CONTRACT LAW:
Contract law concerns enforceable promises, and can be summed up in the phrase “agreements must be kept”.
In common law jurisdictions, three key elements to the creation of a contract are necessary:
- Offer and acceptance,
- Consideration and
- The intention to create legal relations.
For instance the advertisements may give mix messages where the intention is not clear and the consumers can not comprehend it perfectly and get fixed in the trap.
"Consideration" indicates the fact that all parties to a contract have exchanged something of value. In civil law jurisdictions, consideration is not required for a contract to be binding.
In France, an ordinary contract is said to form simply on the basis of a "meeting of the minds" or a "concurrence of wills".
Germany has a special approach to contracts, which ties into property law. Their 'abstraction principle' means that the personal obligation of contract forms separately from the title of property being conferred.
When contracts are invalidated for some reason; the contractual obligation to pay can be invalidated separately from the proprietary title of the object. Unjust enrichment law, rather than contract law, is then used to restore title to the rightful owner.
TORT LAW:
Torts, sometimes called delicts, are civil wrongs. To have acted tortiously, one must have breached a duty to another person, or infringed some pre-existing legal right. A simple example might be accidentally hitting someone with a cricket ball. Under the law of negligence, the most common form of tort, the injured party could potentially claim compensation for his injuries from the party responsible.
PROPERTY LAW:
Property law governs valuable things that people call 'theirs'.
Real property, sometimes called 'real estate' refers to ownership of land and things attached to it.
Personal property refers to everything else; movable objects, such as computers, cars, jewellery, and sandwiches, or intangible rights, such as stocks and shares. The speculations and market crashes, led to strict regulation on share trading.
Land law forms the basis for most kinds of property law, and is the most complex. It concerns mortgages, rental agreements, licences, covenants, easements and the statutory systems for land registration.
Regulations on the use of personal property fall under intellectual property, company law, trusts and commercial law.
EQUITY AND TRUSTS:
Equity is a body of rules that developed in England separately from the "common law". The common law was administered by judges. The Lord Chancellor on the other hand, as the King's keeper of conscience, could overrule the judge made law if he thought it equitable to do so.
This meant equity came to operate more through principles than rigid rules. For instance, whereas neither the common law nor civil law systems allow people to split the ownership from the control of one piece of property, equity allows this through an arrangement known as a 'trust'.
'Trustees' control property, whereas the 'beneficial' or 'equitable' ownership of trust property is held by people known as 'beneficiaries'. Trustees owe duties to their beneficiaries to take good care of the entrusted property.
FURTHER DISCIPLINES:
Law spreads far beyond the core subjects into virtually every area of life. Three categories are presented for convenience, though the subjects intertwine and overlap.
LAW AND SOCIETY:
Labour law is the study of a tripartite industrial relationship between worker, employer and trade union. This involves collective bargaining regulation, and the right to strike. Individual employment law refers to workplace rights, such as job security, health and safety or a minimum wage.
Human rights, civil rights and human rights law are important fields to guarantee everyone basic freedoms and entitlements. These are laid down in codes such as the Universal Declaration of Human Rights, the European Convention on Human Rights (which founded the European Court of Human Rights) and the U.S. Bill of Rights.
The Treaty of Lisbon makes the Charter of Fundamental Rights of the European Union legally binding in all member states except Poland and the United Kingdom.
Civil procedure and criminal procedure concern the rules that courts must follow as a trial and appeals proceed. Both concern a citizen's right to a fair trial or hearing.
Evidence law involves which materials are admissible in courts for a case to be built.
Immigration law and nationality law concern the rights of foreigners to live and work in a nation-state that is not their own and to acquire or lose citizenship. Both also involve the right of asylum and the problem of stateless individuals.
Social security law refers to the rights people have to social insurance, such as jobseekers' allowances or housing benefits.
Family law covers marriage and divorce proceedings, the rights of children and rights to property and money in the event of separation.
LAW AND COMMERCE:
Company law sprang from the law of trusts, on the principle of separating ownership of property and control. The law of the modern company began with the Joint Stock Companies Act 1856, passed in the United Kingdom, which provided investors with a simple registration procedure to gain limited liability under the separate legal personality of the corporation.
Commercial law covers complex contract and property law. The law of agency, insurance law, bills of exchange, insolvency and bankruptcy law and sales law are all important. The UK Sale of Goods Acts and the US Uniform Commercial Code are examples of codified common law commercial principles.
Admiralty law and the Law of the Sea laid a basic framework for free trade and commerce across the world's oceans and seas, where outside of a country's zone of control. Shipping companies operate through ordinary principles of commercial law, generalised for a global market. Admiralty law also encompasses specialised issues such as salvage, maritime liens, and injuries to passengers.
Intellectual property law aims at safeguarding creators and other producers of intellectual goods and services.
These are legal rights i.e. copyrights, trademarks, patents, and related rights; which result from intellectual activity in the industrial, literary and artistic fields.
Restitution deals with the recovery of someone else's gain, rather than compensation for one's own loss.
Unjust enrichment is the third pillar of civil law along with contract and tort. When someone has been unjustly enriched or there is an "absence of basis" for a transaction at another's expense, this event generates the right to restitution to reverse that gain.
LAW AND REGULATION:
Tax law involves regulations that concern value added tax, corporate tax, income tax.
Banking law and financial regulation set minimum standards on the amounts of capital banks must hold, and rules about best practice for investment. This is to insure against the risk of economic crises, such as the Wall Street Crash of 1929.
Regulation deals with the provision of public services and utilities.
Water law is one example. Especially since privatisation became popular and took management of services away from public law, private companies doing the jobs previously controlled by government have been bound by varying degrees of social responsibility. Energy, gas, telecomm and water are regulated industries in most OECD countries.
Competition law, known in the U.S. as antitrust law, is an evolving field that traces as far back as Roman decrees against price fixing and the English restraint of trade doctrine.
Modern competition law derives from the U.S. anti-cartel and anti-monopoly statutes of the turn of the 20th century. It is used to control businesses who attempt to use their economic influence to distort market prices at the expense of consumer welfare.
Consumer law could include anything from regulations on unfair contractual terms and clauses to directives on airline baggage insurance.
Environmental law is increasingly important, especially in light of the Kyoto Protocol and the potential danger of climate change. Environmental protection also serves to penalise polluters within domestic legal systems.
LEGAL SYSTEMS OF THE WORLD:
In general, legal systems can be split between civil law and common law systems.
The term "civil law" referring to a legal system should not be confused with "civil law" as a group of legal subjects distinct from criminal or public law.
A third type of legal system—still accepted by some countries without separation of church and state—is religious law, based on scriptures.
The specific system that a country is ruled by is often determined by its history, connections with other countries, or its adherence to international standards. The sources that jurisdictions adopt as authoritatively binding are the defining features of any legal system. Yet classification is a matter of form rather than substance, since similar rules often prevail.
CIVIL LAW IN A LEGAL SYSTEM:
Civil law is the legal system used in most countries around the world today. In civil law the sources recognised as authoritative are, primarily, legislation—especially codifications in constitutions or statutes passed by government—and custom.
Codifications date back millennia, with one early example being the Babylonian Codex Hammurabi.
Modern civil law systems essentially derive from the legal practice of the Roman Empire whose texts were rediscovered in medieval Europe.
Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class. Instead a lay person, was chosen to adjudicate (means pass a ruling or judgment). Precedents were not reported, so any case law that developed was disguised and almost unrecognised. Each case was to be decided afresh from the laws of the state, which mirrors the theoretical unimportance of judges' decisions for future cases in civil law systems today.
During the 6th century AD in the Eastern Roman Empire, the Emperor Justinian I codified and consolidated the laws that had existed in Rome, so that what remained was one-twentieth of the mass of legal texts from before.
This became known as the Corpus Juris Civilis. As one legal historian wrote, "Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before. Western Europe, meanwhile, slowly slipped into the Dark Ages, and it was not until the 11th century that scholars in the University of Bologna rediscovered the texts and used them to interpret their own laws."
Civil law codifications based closely on Roman law, alongside some influences from religious laws such as Canon law and Islamic law, continued to spread throughout Europe until the Enlightenment; then, in the 19th century, both France, with the Code Civil, and Germany, with the Bürgerliches Gesetzbuch, modernised their legal codes.
Both these codes influenced heavily not only the law systems of the countries in continental Europe e.g. Greece, but also the Japanese and Korean legal traditions. Today, countries that have civil law systems range from Russia and China to most of Central and Latin America. The United States follows the common law system described below.
COMMON LAW AND EQUITY:
Common law and equity are legal systems where decisions by courts are explicitly acknowledged to be legal sources.
The "doctrine of precedent", or stare decisis (Latin for "to stand by decisions") means that decisions by higher courts bind lower courts.
Common law systems also rely on statutes, passed by the legislature, but may make less of a systematic attempt to codify their laws than in a "civil law" system. Common law originated from England and has been inherited by almost every country once tied to the British Empire except Malta, Scotland, the U.S. state of Louisiana, and the Canadian province of Quebec.
In medieval England, the Norman Conquest led to a unification of various tribal customs and hence a law "common" to the whole country. Perhaps influenced by Islamic legal practices around the time of the Crusades, the common law developed when the English monarchy had been weakened by the enormous cost of fighting for control over large parts of France. King John had been forced by his barons to sign a document limiting his authority to pass laws.
This "great charter" or Magna Carta of 1215 also required that the King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country.
A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralised. In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five. This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law.
As a result, as time went on, increasing numbers of citizens petitioned the King to override the common law, and on the King's behalf the Lord Chancellor gave judgment to do what was equitable in a case. From the time of Sir Thomas More, the first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery.
At first, equity was often criticised as erratic, that it varied according to the length of the Chancellor's foot. But over time it developed solid principles, especially under Lord Eldon. In the 19th century the administration of the two systems were fused by the passage of the Judicature Acts.
The bodies of law remain separate to this day, but are administered by the same judges. In developing the common law and equity, academic authors have always played an important part. William Blackstone, from around 1760, was the first scholar to describe and teach it. But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.
RELIGIOUS LAW:
Religious law is explicitly based on religious precepts. Examples include the Jewish Halakha and Islamic Sharia—both of which translate as the "path to follow"—while Christian Canon law also survives in some church communities.
Often the implication of religion for law is un-alterability, because the word of God cannot be amended or legislated against by judges or governments.
However a thorough and detailed legal system generally requires human elaboration. For instance, the Quran has some law, and it acts as a source of further law through interpretation, Qiyas (reasoning by analogy), Ijma (consensus) and precedent.
This is mainly contained in a body of law and jurisprudence known as Sharia and Fiqh respectively. Another example is the Torah or Old Testament, in the Pentateuch or Five Books of Moses.
This contains the basic code of Jewish law, which some Israeli communities choose to use. The Halakha is a code of Jewish law which summarises some of the Talmud's interpretations. Nevertheless, Israeli law allows litigants to use religious laws only if they choose.
Canon law is only in use by members of the clergy in the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion.
Until the 18th century, Sharia law was practiced throughout the Muslim world in a non-codified form, with the Ottoman Empire's Mecelle code in the 19th century being first attempt at codifying elements of Sharia law.
Since the mid-1940s, efforts have been made, in country after country, to bring Sharia law more into line with modern conditions and conceptions. In modern times, the legal systems of many Muslim countries draw upon both civil and common law traditions as well as Islamic law and custom.
The constitutions of certain Muslim states, such as Egypt and Afghanistan, recognise Islam as the religion of the state, obliging legislature to adhere to Sharia.
Saudi Arabia recognises Quran as its constitution, and is governed on the basis of Islamic law.
Iran has also witnessed a reiteration of Islamic law into its legal system after 1979. During the last few decades, one of the fundamental features of the movement of Islamic resurgence has been the call to restore the Sharia, which has generated a vast amount of literature and affected world politics.
LEGAL THEORY: HISTORY OF LAW: LEGAL HISTORY
The history of law is closely connected to the development of civilization.
King Hammurabi is revealed the code of laws by the Mesopotamian sun god Shamash, also revered as the god of justice.
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. 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 Old Testament 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.
Yet Ancient Greek law contained major constitutional innovations in the development of democracy.
Roman law was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists, and were highly sophisticated. 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.
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.
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.
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. 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.
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.
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.
Manu's central philosophy was tolerance and Pluralism, and was cited across Southeast Asia.
This Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire. 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.
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.
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.
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.
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. Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organisation.
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; in Australia, the High Court; in the UK, the Supreme Court (since 1 October 2009; previously, it used to be the House of Lords).
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.
Some countries allow their highest judicial authority to over-rule legislation they determined as unconstitutional.
The U.S. Supreme Court can overturn a law. 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. 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.
In Muslim countries, courts often examine whether state laws adhere to the Sharia: the Supreme Constitutional Court of Egypt may invalidate such laws, and in Iran the Guardian Council ensures the compatibility of the legislation with the "criteria of Islam".
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. 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.
EXECUTIVE (GOVERNMENT):
The G20 meetings are composed of representatives of each country's executive branch. 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, whose office holds power under the confidence of the legislature. Because popular elections appoint political parties to govern, the leader of a party can change in between elections.
The head of state is apart from the executive, and 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.
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.
The first modern police were probably those in 17th-century Paris, in the court of Louis XIV, although the Paris Prefecture of Police claims they were the world's first uniformed policemen.
The military and police carry out enforcement at the request of the government or the courts. Weber famously argued that the state is that which controls the legitimate monopoly of the means of violence.
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.
BUREAUCRACY:
The etymology of "bureaucracy" derives from the French word for "office" (bureau) and the Ancient Greek for word "power".
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.
Cynicism over "officialdom" is still common, and the workings of public servants are typically contrasted to private enterprise motivated by profit. In fact private companies, especially large ones, also have bureaucracies.
Negative perceptions of "red tape" aside, public services such as schooling and healthcare, policing or public transport are a crucial state function making public bureaucratic action the locus of government power.
Writing in the early 20th century, Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support.
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.
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.
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).
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. 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, 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 still allow lawyers with training in traditional Islamic law to practice law before personal status law courts.
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.
Once accredited, a lawyer will often work in a law firm, in 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 are also important to legal practice, depending on the field.
CIVIL SOCIETY:
Classical republican concept of "civil society" dates back to Hobbes and Locke. Locke saw civil society as people who have "a common established law and judicature to appeal to, with authority to decide controversies between them."
German philosopher Georg Wilhelm Friedrich Hegel distinguished the "state" from "civil society" in Elements of the Philosophy of Right.
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.
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.
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, neighbourhoods, churches, and religious associations.
REFERENCES:
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DISCLAIMER:
This above lecture has been developed as it is from the article on LAW available at Wikipedia the free online encyclopaedia i.e. from http://en.wikipedia.org/wiki/Law (retrieved January 18, 2010) and the author claims no responsibility whatsoever about the views expressed in its contents and references given in this above description.
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