Law

1 WHAT IS LAW?

Descriptive and prescriptive

Descriptive law is when it describes how people, or even natural phenomena, ussually behave. Prescriptive law – it prescribes how people ought to behave. For example, the speed limits imposed upon drivers are laws that prescribe how fast we should drive. They rarely describe how fast we actually do drive.

Social morality, rules and law

Prescriptive law regulates relations between people. Some of them are customs – informal rules of social and moral behavior. Customs are not made bby government and are not written down. Sometimes we break these rules and suffer any any penalty. Other member of society may ridicule us, criticize us or act violently toward us when we break these rules or one important of them. The rules of social institutions tend to be more formal then customs, carrying precise penalties for those who break them. Governments, making laes for their citizens, use system of courts backed by the power of the police to enforce tthese laes.There are two kinds of prosecution in many counties: a) to conduct a civil action against somebody, demanding compensation for his injury and getting his claim enforced by a court of law; b) police might also start an action aagainst someone for a crime or violence. If found guilty, he/she might be sent to prison, or might be made to pay a fine to the court. Making and enforcing laws government have motives. Without laws there would be anrchy in society. Second purpose is the implementation of justice. Sometimes law are simply an attempt to implement common sense. Common sense is not such a simple matter. It becomes clear because in order to be enforced, common sense needs to be defined in law and definitions written down. The laws differ in variuous countries. It makes difficulties to write a general introductory book about the law today.

2 SOURCES OF MODERN LAW

Particular country has particular legal system. There two kinds of llaw in the world. Ne of them is based on English Common law, and has been adopted by many Commonwealth countries and most of the US. Another, sometimes known as Continental law, or Roman law, has developed in most of continental Europe, Latin America and many countries in Asia and Africa which have been influenced by Europe. Continental law has also influenced Japan and several socialist countries.

Common law systems

By doctrine of precedent, judges attempted to apply existing customs and llaws to each new case, rather then looking to the government to write new laws. If the essential elements of a case were the same as those decision regarding guilt or innocence. If no precedent could be found, then the judge made decision based upon existing legal principles, and his decision would become a precedent for other courts to follow when a similar case arose. The doctrine of precedent is still a central feature of modern common law system. Equity is another important feature of the common law tradition. The courts of common law and of equity existed alongside each other for centuries. In England people were dissatisfied with the inflexibility or the common law, and this practice developed of appealing directly to the king or to his chief legal administrator (lord chancellor). As the lord chancellor’s court became more willing to modify existing common law in order to solve disputes; a new system of law developed alongside the common law. Rights that were not enforced as common law but which were considered “equitable” were recognised of this system. These two systems caused some problems. A person had to to begin actions in a different courts in order to get aa satisfactory solution. In a breach of contractclaim, a person had to seek specific performance in court of equity, and damages in a common law court. Later these two systems were unified.

Continental systems

Continental systems are known as codified legal systems.They have resulted from attempts by governments to produce a set of codes to gevern every legal aspect of a citizen’s life. It was necessary to make laws that were clear and comprehensive, in order to separate the roles of legislature and judiciary. The lawmakers were influeced by the modlel of Canon law. It is important not to increase the differences between these two traditions of law.

Modern Japanese law

In spite of tradition of private law, the lawmaker’s of Japan decided to adopt criminal and civil codes closely based on the Continental law. And new codes of law developed under the postwar occupation show some influence from Anglo-American common law traditions. That is why modern Japanase law consists of two traditions of law.

Socialist legal systems

Codyfying Chinese law system comprehensively, but so far there has been just a little progress. In China, law courts are still primary regarded as political instruments. But recently, citizens in some areas have been encouraged to seek llegal redress in disputes with other citizens.

3 CIVIL AND PUBLIC LAW

Main categories

Civil law concerns disputes among citizens within country. Public law concerns disputes between citizens and the state, or between one state and another. Contracts ( binding agreements between people or companies ), torts ( wrongs commited by one individual against another person’s property ), trusts ( arrangements whereby a person administers property for another person’s benefit ), probate ( arrangements for dealing with property after the owner’s death ), family law are the main categories of English civil law. And the main categories of public law are: crimes ( wrong commited against another person ), Constitutional law ( regulation of how the law itself operates and of the relation between private citizen and government ), international law ( regulation of relations between governments and also between private citizens of one country and another ).

Differences in procedures

The standarts of proof are higher in a criminal action than in a civil one. The prosecution must prove the guilt of a criminal “beyond reasonable doubt”. But the plaintiff in a civil action is required to prove his case “on the balance of probabilities”. The party bringing a criminal action is called prosecution,

but the party bringing a civil action is the plaintiff. In both means of action the other party is known as the defendant. A criminal case against a person called Ms.Brown would be described as “The people vs. Brown” in England. But acivil action between Ms.Brown and Ms.White would be “Brown vs.White” if it was started by the Brown and so on.

Points of contact

It is all the same there are many point of contact between criminal and civil law. IIf the loser of a civil case refuses to comply with the order made against him the prosedures for forcing him to comply may result in a criminal prosecution. Criminal conduct can be constituted disobeying any court.

4 JUDICIAL INSTITUTIONS

There are institutions for creating, modyfying, abolishing and applying the law in all legal systems. It takes the form of hierarchy of courts. Because of the reason that a particular court can specialize in particular kind of legal action we have various ccourts. Second reason would be that a person who feels his case was not fairly treated in a lower court can appeal to a higher court.

English court

House of Lords

Court of appeal

Criminal Division Civil Division

High Court

Queen’s Bench Division Chansery Division Family Division

Crown Court

Magistrates Court County Court (Magistrates Court)

There is shown how courts relate to one another. The Crown Courts deal exclusively with criminal matters, the ...