Keith Mack
Laws are a set of rules that are created and enforced by social or governmental institutions to regulate behaviour. They shape politics, economics, history and society and serve as a mediator of relations between people. Legal systems vary between jurisdictions, with laws being made by a legislature, resulting in statutes, by the executive through decrees and regulations, or by judges' decisions, which form precedents in common law jurisdictions. In democratic countries, the law-making process involves the proposal of a bill, which is then assigned to a committee for research, discussion, and amendments before being put to a vote. This process ensures that the laws reflect the values and wishes of the people and protect the rights of minorities.
| Characteristics | Values |
|---|---|
| Definition | Rules that are created and enforced by social or governmental institutions to regulate behaviour |
| Creation | Influenced by a constitution, written or tacit, and the rights encoded therein |
| Types | Public law, private law, civil law, common law, international law |
| Function | Shapes politics, economics, history and society; serves as a mediator of relations between people |
| Lawmakers | Congress, the Senate, the President |
| Process | A bill is proposed, assigned to a committee, researched and discussed, voted on by both houses of Congress, sent to the President for approval, signed into law |
| Courts | Interpret and implement the constitution, hear grievances voiced by minority groups, maintain equality before the law |
| Safeguards | Emphasis on protection of the minority, allowing all sides to be heard |
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What You'll Learn
Law creation and enforcement
Laws are a set of rules that are created and enforced by social or governmental institutions to regulate behaviour. They shape politics, economics, history, and society and serve as a mediator of relations between people. The law creation and enforcement process can vary depending on the legal system and jurisdiction. However, here is a general overview of the law creation and enforcement process in common law and civil law systems.
Common Law Systems
Common law systems have an institutionalised and unified system of law that applies to the entire country. In common law systems, judges play a crucial role in interpreting and implementing the constitution and creating a body of constitutional law. Courts with judicial review powers can annul state laws and rules that conflict with higher norms, such as the constitution, international law, or primary legislation. The concept of "common law" originated in medieval England during the Norman Conquest and has been adopted by many countries previously tied to the British Empire.
Civil Law Systems
In civil law systems, the law-making process typically involves the legislature or a central body that codifies and consolidates the law. Legislative statutes are usually more detailed, while judicial decisions are shorter and focused on deciding individual cases rather than setting precedents. Civil law systems often have a general law of obligations that encompass contract and tort law.
The process of creating and enforcing laws can vary depending on the country and legal system. However, in countries like the United States, the law creation process typically involves the following steps:
- Proposal: A bill, which is a proposal for a new law or a change to an existing law, can be introduced by a member of the legislature or petitioned by citizen groups.
- Committee Review: The bill is assigned to a committee that researches, discusses, and makes changes to the bill.
- Legislative Vote: The bill is put before the legislature for a vote. If it passes one body, it moves to the other body (if there is more than one) for a similar process.
- Reconciliation: If both bodies pass the bill, they work out the differences between the two versions.
- Executive Approval: The bill is then presented to the executive (such as the president in a presidential system) for approval. The executive can approve the bill, veto it, or take no action.
- Legislative Override: If the executive vetoes the bill, the legislature may have the power to override the veto and pass the bill into law.
- Implementation: Once a bill becomes a law, government agencies or institutions may be authorised to create regulations and enforce the law.
It's important to note that the law creation and enforcement process can be complex and may involve additional steps or variations depending on the country and legal system. The process aims to ensure that laws are created with careful consideration, discussion, and input from various stakeholders.
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Common law and civil law
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts, then locate any relevant statutes and cases, and then extract the principles, analogies, and statements by various courts. More recent decisions and decisions of higher courts carry more weight. Finally, one integrates all the lines drawn and reasons given, determines "what the law is", and applies that law to the facts. Common law is more malleable than statutory law. Common law courts can reinterpret and revise the law without legislative intervention to adapt to new trends.
Civil law, also called continental or Romano-Germanic law, is the most common legal system in the world, practiced in about 150 countries. It is rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, most notably with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). Civil law systems rely primarily on codes and statutes, with a comprehensive code of statutes that outlines everything from procedures for handling claims to the punishment for offenses. Civil law systems are characterized by their reliance on legal codes that function as the primary source of law. Civil law is derived from the Latin jus civile, or "citizens' law". It draws heavily from Roman law, which is arguably the most intricate legal system before the modern era. Civil law systems are found on all continents and cover about 60% of the world.
While common law systems give great weight to judicial precedent and the style of reasoning inherited from the English legal system, civil law systems do not consider court decisions as precedent and binding in later cases. Civil law systems are more focused on codified law, with judges playing the main role of finding the facts and applying the law in courts. Civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules. It holds case law secondary and subordinate to statutory law.
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Public law and private law
Public law is a set of rules that govern the relationships between private individuals or organisations and public bodies, such as government departments and local authorities. It deals with issues that affect the general public or society as a whole. Public law establishes legal boundaries for the public and prosecutes those who violate the rules through criminal law and the justice system. It also holds public organisations accountable for their actions and ensures they operate fairly and reasonably. Constitutional law, administrative law, criminal law, international law, financial law, education law, and human rights law are all examples of public law.
Private law, on the other hand, regulates relationships between individuals and private entities. It covers areas such as contract law, property law, family law, mercantile law, and corporation law. Private law focuses on individual interests and the relationships between individuals within a legal system. It is important to note that private law can also include relationships between individuals and governments, where the government's role is purely facilitative of horizontal dealings among private parties.
The main distinction between public and private law is the scope of their impact. Public law affects society as a whole, while private law deals with issues between two or more people or parties. However, this distinction can sometimes be blurred, as certain acts may violate both types of law simultaneously. For example, property crimes can inflict private harm but may also be considered "offences against society" and classified as crimes under public law.
In summary, public law shapes the legal system and ensures the protection of society and individuals' rights, while private law governs relationships and interactions between individuals or organisations, focusing on their individual interests.
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The role of the judiciary
Law is a set of rules that are created and enforced by social or governmental institutions to regulate behaviour. The judiciary, also known as the judicial system, is the system of courts that interprets, defends, and applies the law in legal cases. The judiciary is responsible for adjudicating legal disputes or disagreements and can be thought of as a mechanism for the resolution of disputes.
The judiciary plays a crucial role in maintaining the rule of law, especially when addressing the grievances of minority groups or individuals with minority opinions. For instance, when the majority infringes upon the rights of a minority, the court may hear both sides of the controversy. The judiciary ensures that the people's representatives act only within the authority given to them by the constitution. In common law countries, judges form the body of constitutional law and interpret the constitution and any laws passed by the legislature.
Judicial decisions can also annul the laws and rules of the state when they are deemed incompatible with a higher norm, such as primary legislation, constitutional provisions, treaties, or international law. In some countries, the judiciary can also make common law and has the power to change laws through judicial review.
Historically, the head of the judicial system was a priest, who would oversee the judicial process and look at the applicable rules to a case. The priest was later replaced by a praetor, who would declare new laws or principles for the year of their election, known as praetorian law. The judicial process at the time consisted of two phases, with the first being the In Iure judicial process. In the classical era of Roman Law, the praetor's edict was known as the edictum perpetuum, a collection of all previous edicts. A new judicial process, cognitio extraordinaria, was introduced, which involved presenting the case to a professional judge who represented the emperor.
The development of the judiciary and judicial systems over time has been influenced by various factors, including the rediscovery of ancient legal texts, the emergence of universities, and the evolution of different forms of law, such as canon law and secular law.
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International law
Customary international law comprises international obligations that arise from established international practices rather than formal written treaties. Customary law arises from patterns of behaviour in nations, where states follow certain practices out of a sense of legal obligation, and those practices develop into international law. For example, most nations have agreed to prohibitions on genocide and certain forms of torture.
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Frequently asked questions
A law is a set of rules that are created and enforceable by social or governmental institutions to regulate behaviour.
In the US, laws are created by Congress, which is the lawmaking branch of the federal government. Each Congress lasts about two years, and during this time, Senators and Representatives may introduce thousands of bills, some of which become laws.
The process of creating a law starts with a bill, which is a proposal for a new law or a change to an existing law. A bill can be proposed by a sitting member of the US Senate or House of Representatives or be suggested during their election campaign. Bills can also be petitioned by citizens or groups who recommend a new or amended law to a member of Congress. Once introduced, a bill is assigned to a committee, which researches, discusses, and makes changes to it. The bill then goes through a process of voting in both the House of Representatives and the Senate. If it passes in both chambers, it is presented to the President for approval. The President can approve the bill, veto it, or do nothing, resulting in a pocket veto. In some cases, Congress can override a veto and the bill becomes a law.
Public law is closely related to the state and includes constitutional, administrative, and criminal law. Private law covers contract, tort, and property law.
