LAW: WHAT IS IT?

Law is a body of official rules and regulations. It is generally found in constitutions, legislation and
judicial decisions. Law is used to govern a society and to control the behaviour of its members. The
nature and functions of law have varied throughout history. In modern societies, some authorized body
such as a legislature or a court makes the law. It is supported by the coercive power of the state, which
enforces the law by means of appropriate penalties or remedies.
Formal legal rules and actions are usually distinguished from other means of social control and guides for
behaviour such as morality, public opinion, and custom or tradition. Of course, a lawmaker may respond
to public opinion or other pressures, and a formal law may prohibit what is morally unacceptable. Law
serves a variety of functions. Laws against crimes, for example, help to maintain a peaceful, orderly,
relatively stable society. Courts contribute to social stability by resolving disputes in a civilized fashion.
Property and contract laws facilitate business activities. Laws limit the powers of government and help to
provide some degree of freedom that would not otherwise be possible. Law has also been used as a
mechanism for social change; for instance, at various times laws have been passed to improve the quality
of individual life in matters of health, education, and welfare. Law is not completely made by humans; it
also includes natural law. The best known version of this view, that God’s law is supreme, has had
considerable influence in the United States and other Western societies. The civil rights movement, for
example, was at least partially inspired by the belief in natural law. Such a belief seems implicit in the
view that law should serve to promote human dignity, as for instance by the enforcement of equal rights
for all. Muslim societies also embrace a kind of natural law, which is closely linked to the religion of
Islam.

CIVIL LAW (FAMILY, CONTRACT, INTELLECTUAL PROPERTY)

The civil law covers cases related to family, property, contracts and non-contractual wrongful acts
suffered by one person at the hands of another (torts). Family law includes the laws governing marriage,
divorce and the welfare of children; the law of property governs ownership, disposal of property on
death, etc.; the law of contract regulates, for instance, the sale of goods, loans, partnerships, insurance and
guarantees. Civil proceedings are started by the aggrieved person. As a private matter, they can usually be
abandoned or ended by settlement between the parties at any time. In many cases, parties to a dispute
settle their differences through their lawyers before the trial stage is reached. Family law is divided into
public and private law cases. Public law cases involve local government and other public authorities and
include matters such as care of children. Private law cases involve divorce proceedings, etc. Most court
cases involving children concern private disputes between parents — often after separation. Torts include
wrongs such as negligence, defamation, etc. If these legal rights have been infringed, a plaintiff can sue
for compensation. One of the most important tort actions is that for negligence, when a person fails to

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live up to an expected standard of care and someone is injured as a result. This can cover physical
damage or financial loss. A contract is an agreement between two or more parties, which is enforceable
by law. A valid business contract, for instance, must involve an offer to supply goods or services,
consideration (the price to be paid) and acceptance by the purchaser. The offer may be revoked at any
time before acceptance but it must be communicated to the purchaser. Acceptance of an offer must mean
agreement entirely with the terms of the offer, and the terms must be sufficiently detailed. In addition, the
object of the contract must not be illegal; it is against the law for two people to make a deal between
themselves if this involves a criminal offence. An example of a contract is the purchase of goods in a
shop. If the goods purchased turn out to be shoddy, the purchaser can sue the seller in the civil courts
usually for damages. Conversely, if the ownership of goods passes to the purchaser and they are not paid
for, the seller can sue for the price of goods. Similarly, an employer is bound to pay an employee for
work done; if he or she fails to do so, a breach of contract action can take place. Intellectual property laws
reward the creators of original works by preventing others from copying, performing, or distributing
those works without permission. They also provide incentives for people to produce scientific and
creative works that benefit society at large. Some types of intellectual property are automatically
protected by law from the moment of their creation. Other types require a specific grant of rights from a
government agency before they may be protected by law. Nearly all nations have laws protecting
intellectual property. The principal types of intellectual property are patents, copyrights, and trademarks.
Patent law protects inventions that demonstrate technological progress. Copyright law protects a variety
of literary and artistic works, including paintings, sculpture, prose, poetry, plays, musical compositions,
dances, photographs, motion pictures, radio and television programs, sound recordings, and computer
software programs. Trademark law protects words and symbols that serve to identify different brands of
goods and services in the marketplace. Intellectual property differs from other forms of property because
it is intangible, a product of the human imagination. Because intellectual property is intangible, many
people may use it simultaneously without conflict. For example, only one person can drive a car at a time,
but if an author publishes a book, many people can read the work at the same time. Intellectual property
is also much easier to copy than it is to create. It may take many months of work to write a novel or
computer program, but with a photocopy machine or a computer others could copy the work in a matter
of seconds. Without intellectual property laws, it would be easy to duplicate original works and sell them
for very low prices, leaving the original creators without any chance to secure economic rewards for their
efforts. The legal system avoids this problem by making it against the law to reproduce various forms of
intellectual property without the permission of the creator.

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CRIMINAL LAW

Criminal Law is the body of law that defines criminal offences, regulates the apprehension, charging,
and trial of suspected persons, and fixes punishment for convicted offenders. The offences that involve
criminal law, a part of public law, are those against the state. Criminal law presupposes a rule of law in
defining acts as criminal. In other words, however immoral or unjust an act may be thought to be, it is not
a crime unless the law says it is one. Under the common law, custom and precedent define criminal
action; in countries or states where a legal code exists, statute defines it. Criminal law usually prohibits
the trial of a person a second time for the same offence (double jeopardy) and contains statutes of
limitations — that is, limits for the period during which charges may be made. A crime is usually defined
as a voluntary act or omission, in conjunction with a given state of mind. Acts committed during fits of
epilepsy or while sleepwalking are involuntary and thus do not qualify as crimes. Mental disorders are
also widely recognized as limiting responsibility for acts otherwise regarded as criminal. Other factors
entering into the determination of criminal intent are self-defense, defense of other persons, protection of
property, and enforcement of the law. The law of most countries recognizes that the use of force, while
not justifiable, may be excused if the defendant believed that the use of force was necessitated by special
circumstances. Criminal acts include arson, rape, treason, aggravated assault, theft, burglary, robbery, and
murder. Other concerns of criminal law are cons; piracy, a rather broad term that denotes agreement
between two or more individuals to commit a crime, and attempt. The definition of attempt varies from
one legal system to another, but essentially it is preparation for criminal action that has gone beyond a
legally defined point. Important differences exist between the criminal law of most English-speaking
countries and that of other countries. The criminal law of England and the United States derives from the
traditional English common law of crimes and has its origins in the judicial decisions embodied in reports
of decided cases. England has consistently rejected all efforts toward comprehensive legislative
codification of its criminal law; even now there is no statutory definition of murder in English law. Some
Commonwealth countries, however, notably India, have enacted criminal codes that are based on the
English common law of crimes. The criminal law of the United States, derived from the English common
law, has been adapted in some respects to American conditions. In the majority of the U.S. states the
common law of crimes has been repealed by legislation. The effect of such statutes is that no person may
be tried for any offence that is not specified in the statutory law of the state. But even in these states the
common-law principles still exist, for the criminal statutes are often simply codifications of the common
law, and their provisions are interpreted by reference to the common law. In Europe the criminal law of
modern times has emerged from various codifications. By far the most important were the two
Napoleonic codes of 1808 and 1810. The German codes of 1871 (penal code) and 1877 (procedure)
provided the models for other European countries. In the last few decades the movement for codification
and law reform has made considerable progress everywhere. Modern criminal law has been affected

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considerably by the social sciences, especially with respect to sentencing, legal research, legislation, and
rehabilitation.

CONTRACT LAW

A contract, in the simplest definition, is a promise enforceable by law. The promise may be to do
something or to refrain from doing something. The making of a contract requires the mutual assent of two
or more persons, one of them ordinarily making an offer and another accepting. If one of the parties fails
to keep the promise, the other is entitled to legal recourse against him. The law of contracts considers
such questions as whether a contract exists, what the meaning of it is, whether a contract has been broken,
and what compensation is due the injured party. Contract law is the product of a business civilization. It
will not be found, in any significant degree, in precommercial societies. Most primitive societies have
other ways of enforcing the commitments of individuals; for example, through ties of kinship or by the
authority of religion. In an economy based on barter, most transactions are self; enforcing because the
transaction is complete on both sides at the same moment. Problems may arise if the goods exchanged are
later found to be defective, but these problems will be handled through property law — with its penalties
for taking or spoiling the property of another — rather than through contract law. Even when transactions
do not take the form of barter, primitive societies continue to work with notions of property rather than of
promise. In early forms of credit transactions, kinship ties secured the debt, as when a tribe or a
community gave hostages until the debt was paid. Other forms of security took the form of pledging land
or pawning an individual into «debt slavery.» Some credit arrangements were essentially self-enforcing:
livestock, for example, might be entrusted to a caretaker who received for his services a fixed percentage
of the offspring. In other cases — constructing a hut, clearing a field, or building a boat — enforcement
of the promise to pay was more difficult but still was based on concepts of property. In other words, the
claim for payment was based not on the existence of a bargain or promise but on the unjust detention of
another’s money or goods. When a worker sought to obtain his wages, the tendency was to argue in terms
of his right to the product of his labour. A true law of contracts — that is, of enforceable promises —
implies the development of a market economy. Where a commitment’s value does not vary with time,
ideas of property and injury are adequate and there will be no enforcement of an agreement if neither
party has performed, since in property terms no wrong has been done. In a market economy, on the other
hand, a person may seek a commitment today to guard against a change in value tomorrow; the person
obtaining such a commitment feels harmed by the fact that the market value differs from the agreed price.
Traditional contract law developed rules and principles controlling the voluntary assumption of
obligations, regulating the performance of obligations so assumed, and providing sanctions for failure to
perform. 249 Module 9. Unit 3 Modern commercial practice relies to a growing extent on arbit; ration to
handle disputes, especially those that arise in international transactions. There are several reasons for the
growing use of arbitration. The procedure is simple, it is more expeditious, and it may be less expensive

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than traditional litigation. The arbitrators are frequently selected by a trade association or business group
for their expert understanding of the issues in the dispute. The proceedings are private, which is
advantageous when the case involves trade or business secrets. In many legal systems, the parties can
authorize arbitrators to base their decision on equitable considerations that the law excludes. Finally,
when the parties are from different countries, an international panel of arbitrators may offer a greater
guarantee of impartiality than would a national court. Despite these advantages of arbitration, the
development of contract law may suffer considerably by a withdrawal from the courts of litigation
involving some of the most significant and difficult problems of the present day, all the more so because
the reasoning in arbitral awards is usually not made public.

HUMAN RIGHTS

People use the word «rights» in different senses, and so we need to clarify what they mean. «Rights» may
refer to legally enforceable freedoms. Thus, when lawyers talk about the «right to vote», they may be
referring to legal rights contained in the national acts and perhaps also to the international treaty
obligations which place a duty on governments to organise elections. For instance, the countries, which
have ratified the First Protocol to the European Convention on Human Rights (ECHR) «undertake to hold
free elections at reasonable intervals by secret ballot, under conditions which will ensure the free
expression of the people in the choice of the legislature» (Art 3). «Rights» may also be used to mean
something else. Campaigners for voluntary euthanasia in the UK, for example, say that people have the
right to die with dignity and with the assistance of their doctor. They are not suggesting that there is
currently such a legal right; rather, they use the word «right» as a rhetorical device to add weight to their
moral argument in favour of mercy killing. Many philosophers prefer to avoid using the language of
rights in such contexts. Today, the term «human rights» is often used to describe people’s residual
liberties from interference by State authorities. After the Second World War many countries around the
world, came to recognize that rights against State interference and coercion were no longer a question
solely for national law. Since the late 1940s, many international treaties have been established under
which governments of Signatory States agree with one another to respect the basic freedoms of their
citizens. Under the auspices of the United Nations, the Universal Declaration of Human Rights was
established in 1948. Several regional treaties were subsequently created, including the ECHR, which
came into force in 1953. These treaties were new forms of international law. First, the countries, which
are parties to them, agree with one another to respect the rights of people within their jurisdiction; i.e.
international law had been regarded as only regulating the relations between States. Secondly, these
treaties established tribunals and procedures for monitoring and enforcing the parties’ compliance with
their treaty obligations. The term «human rights» is not limited to the freedoms people have from
unjustified coercion by State authorities. Several international treaties seek to protect political rights to
participate in collective decision;making, such as the First Protocol to the ECHR. «Human rights» also

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extends to some economic and social entitlements. There are many jurisprudential debates about the
nature of rights and how they are expressed in law. There are two particular controversies: what is the
source of human rights; and are they universally applicable to all times and places? For many legal
theorists, human rights exist because they are «natural» or «inalienable» attributes to being a human
being. Rosalyn Higgins states that: Human rights are rights held simply by virtue of being a human
person. They are part and parcel of the integrity and dignity of the human being. They are thus rights that
cannot be given or withdrawn at will by any domestic legal system [Problems and Processes:
International Law and How We Use It, 1994, Oxford: OUP, p 96]. In the past, there have been great
philosophical debates over whether such «natural» rights existed, but with the drafting of international
legal charters to human rights after the Second World War, these controversies have become less pressing
for lawyers and politicians, as they are now able to see those instruments themselves as the source of
human rights. Another debate around the nature of human rights is, therefore, whether they are universal
and timeless, or contingent on culture and temporary. This is often part of a more general debate about
the nature of liberal democracy. Some legal scholars are anxious to stress the universal aspects of human
rights, others are less certain. The rights set out in international treaties seeking to protect liberty rights
are important to the system of liberal democracy for two main reasons. One is that rights to liberty go to
the core of what it means to be a human being. Without them, a person is little more than an automaton
— a member of an army rather than a citizen belonging to a community. In other words, such rights
provide a basis from which to argue that there are areas of personal freedom, which should not be
violated by State authorities (including Parliament and the judiciary). A second reason is that many
liberties are the pre-conditions for meaningful democracy. Parliamentary elections and the process of
legislation are valuable ways of making collective decisions for a society only if people’s basic freedoms
are respected. Suppose, for example, a government calls an election, but bans other political parties,
suppresses dissenting opinion, confiscates critical literature, puts its opponents in jail without fair trial,
kills them or imposes internal exile. Even if the governing party wins a majority of votes, its election and
its subsequent actions would lack legitimacy.