Martial Law

Martial Law, government by military authorities. Martial law derives its justification from the need, when civil authority is inadequate, to use military force to suppress insurrection, riot, or disorder, or to deal with public calamity. Inasmuch as martial law is called forth by necessity, the extent and degree to which it may be employed and may supersede civil authority are also measured by necessity.

Martial law is invoked when there is a state of war, or insurrection or rebellion amounting to a state of war. It is not clear whether this is truly a law, or merely the use of the amount of force necessary by the state (in England, the Crown) and its officers to restore order. The Bill of Rights in England forbids the declaration of martial law in time of peace.

Once the state of war is actually established, the courts cannot question military acts. In the case of a riot or disturbance, on the other hand, the courts can determine whether the amount of force used was excessive. It is customary whenever martial law or some variant of it has been applied, as in wartime, to pass an Act of Indemnity to protect any officer from legal attacks on their conduct during the period of martial law.

A less rigorous form of suspension of normal procedures is the declaration of a state of emergency, which is declared by proclamation. A state of emergency may be declared, for a maximum of a month, when the essentials of life for the population are threatened. It allows regulations to be made without an Act of Parliament, and grants certain powers to government ministers.

In wartime, a nation may invoke martial law over its own territory as part of the war effort; such action is distinct from military occupation by an invading power. Martial law may also be invoked in cases of severe internal dissension or disorder, either by an incumbent government seeking to retain power or by a new government after a coup d’état. Often in the case of a military coup, military authorities take over the state administrative and judicial apparatus, and civil and political liberties are suspended. Nations experiencing significant periods of martial law during the 1970s and 1980s included Chile, the Philippines, Poland, and Turkey.

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Damages

Damages, an award of money that a court of law requires be given to one who has suffered a loss, injury, or invasion of a legal right (as when one party to a contract does not fulfill its obligations) as a result of the act of another.

Damages may be compensatory or punitive. Compensatory damages, the most usual type, are intended to place the injured party in the position the person would have occupied if no injury had occurred. For example, someone who has been wronged by the failure to meet the terms of a contract is awarded as damages a sum equal to the amount that would have been earned if no breach had occurred. In accident cases arising from negligence, the theory is that the damages compensate for the more or less measurable elements of loss. These include medical expenses and impaired earning capacity, but also the intrinsically immeasurable element of pain and suffering. Alternatively, compensatory damages may be trivial or nominal, to indicate disapproval of an action, such as trespass, from which no damage actually results. Punitive damages are intended to punish the wrongdoer by obligating him or her to pay a sum in addition to a number of compensatory damages awarded to the plaintiff for harm done. Provision for double or treble damages is usually embodied in statutes. Punitive damages are allowed in only a few types of legal actions, including those for libel and slander.

Accident

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Accident

I INTRODUCTION

Accident, unintended and unforeseen event, usually resulting in personal injury or property damage. In law, the term is usually limited to events not involving negligence (that is, the carelessness or misconduct of a party involved) or to a loss caused by lightning, floods, or other natural events (See Act of God). In popular usage, however, the term “accident” designates an unexpected event, especially if it causes injury or damage, without reference to the negligence or fault of an individual. The basic causes of such accidents are, in general, unsafe conditions of machinery, equipment, or surroundings, and the unsafe actions of persons, caused by ignorance or neglect of safety principles. See Negligence.

II PREVENTION OF ACCIDENTS

Organized efforts for the prevention of accidents began in the 19th century with the adoption of factory inspection laws, first in the United Kingdom and then in the United States and other countries. Fire insurance and accident insurance companies made efforts to enforce safety rules and to educate the public. Factory inspectors and inspectors from fire insurance and casualty insurance companies carried on the campaign against unsafe conditions and actions, and at the beginning of the 20th century, a new branch of engineering developed, devoted to finding and eliminating such hazards (See Industrial Safety).

Laws concerning workers’ compensation were passed in Germany in 1884, in Great Britain in 1897, and in several states of the United States from 1908 onward. By placing the financial burden of caring for injured workers on the employer, such laws created an incentive for providing safe machinery and working conditions, and for improved selection and training of employees. In the United Kingdom, the Health and Safety Executive is the government agency charged with ensuring that employers provide a safe system of work and a safe working environment. The Executive prosecutes companies whose workplaces are dangerous.

III MOTOR-VEHICLE ACCIDENTS

The single greatest cause of accidents in the developed world is the motor vehicle. The huge rise in the number of motor cars in the 20th century has resulted in approximately 5,000 deaths a year from vehicle accidents in the United Kingdom.

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Negligence

I INTRODUCTION

Negligence, in law, failure to exercise due care in carrying out activities that result in damage for which the victim can claim compensation. Negligence is usually the careless commission of an act—often driving—but it may be a careless failure to act.

Bringing a successful legal action for damages for an act of negligence depends on establishing three stages. There must first of all be a duty to take care in performing the act: for example, a driver owes a duty of care to other road users. Secondly, the negligent defendant must be in breach of that duty: a breach of duty is made if the defendant did not match the standard of a reasonable person in that situation, and for these purposes, the defendant’s personality and temporary characteristics (such as drunkenness) are not considered. Thirdly, that breach of duty must have caused damage.

II DUTY OF CARE

A person will be taken to owe a duty of care to others chiefly when it is foreseeable that a breach of that duty will cause damage to them. The actual defendant need not have foreseen the possibility; it is enough that the possibility reasonably exists. Sometimes the duty is a general one: a driver owes a duty of care to all other road users, including other drivers, vehicle passengers, and pedestrians. Sometimes the duty arises from a particular relationship: a doctor owes a duty of care to his patient but does not generally owe a duty to the patient’s family. In the absence of a special relationship, there is no general duty to go to the rescue of those who are in danger.

III BREACH OF DUTY

When a person who owes a duty of care to another person fails to take proper care, there is a breach of duty. When the courts consider what amounts to “proper care”, they seldom make allowances for the defendant’s particular circumstances, so a learner driver will be expected to drive to the standard of an experienced driver, for example. The highest degree of skill is not required of a defendant: a junior hospital doctor will be expected to display the skills of a consultant, but not of a world expert on the subject.

IV CAUSATION OF DAMAGE

The necessity for the breach of care to have caused the damage is often obviously satisfied, as in a road accident. It presents more problems, however, when applied to more complex activities. In medical law, for example, it is necessary for the claimant to show that negligence was not just a possible cause, but the actual cause, of the injury: this means that if the injury might have been caused by other factors, even where there was admitted negligence on the part of doctors, they will often not be liable. Similar problems may arise where an industrial environment may have caused diseases that could be attributable to other factors.

V SPECIAL CASES

In certain circumstances, the rules are altered somewhat. The occupier of land owes visitors to the land “the common duty of care”, which is a duty to take reasonable care to see that visitors will be reasonably safe in using the premises for the purposes for which they are invited or permitted by the occupier to be there. A duty of care is also owed to trespassers, but the standards expected of the occupier are lower.

A defendant will seldom be held liable for the negligent acts of third parties unless they are his or her employees and are acting in the course of their employment. A National Health Service hospital will, therefore, be liable for negligent treatment given by one of its doctors, but it will not be liable if the doctor causes a road traffic accident while driving to work. (See “Vicarious Liability”, below.)

VI DAMAGES

Damages are recoverable for all kinds of physical injury and the resultant losses, such as loss of earnings or a requirement for medical care. They are available for “nervous shock”—psychological injury—for those who are physically injured, but those who suffer from injury to a loved one will only have a claim if they are present at the accident or immediately afterward. An exception is made for those who suffer trauma as a result of taking part in rescue work; in such cases, compensation can be recovered.

Economic loss—usually the loss of a chance of making a profit—is recoverable only in limited circumstances. The relationship between the parties must have been such that the defendant plainly knew that the claimant risked suffering the loss if the defendant was negligent.

VII BURDEN OF PROOF

The claimant in a negligence action is required to prove all the above factors as to the defendant’s negligence. In order to succeed, the proof must be on the balance of probabilities: it must be more likely than not that the claimant’s version is true. One aspect that may assist the claimant is the doctrine res ipsa loquitur (Latin, “the matter speaks for itself”): if the claimant can show that the injury was sustained in the course of the defendant’s activities, and it would not have occurred other than by negligence, the negligence is proved unless the defendant can show otherwise. For example, a passenger may be asleep in a car that leaves the road and runs into a tree. He might have no idea what caused the car to behave like that, but he would be able to say to the court that the only possible explanation was negligence on the part of the driver.

VIII CONTRIBUTORY NEGLIGENCE

A claimant may have the number of damages for an injury reduced if the defendant can show that the claimant contributed to the accident by his or her own negligence. For example, a pedestrian who carelessly walks in front of a car and is run down by a careless driver might have the damages reduced by 50 percent or more.

IX VICARIOUS LIABILITY

Many negligent acts are committed by employees in the course of their work. In such cases, the victim may sue the employer instead of the employee, and this is the usual course since the employer is more likely to be insured, or to be in a position to afford the damages. The rule applies regardless of any fault on the employer’s part. The employer can, in theory, recover the damages from the employee, but this is almost never done.

X CRIMINAL NEGLIGENCE

Certain criminal offences can be based on negligent conduct. If someone is killed through the gross negligence of another, it may constitute the criminal offence of manslaughter. Negligent driving will usually also constitute the motoring offence of careless driving. Although a motorist guilty of the offence of dangerous driving will have no defence to a claim for damages in negligence, this offence is much more serious, and usually constitutes a course of deliberately bad driving—for example, racing with another motorist, or deliberately overtaking on a blind bend.

Contributed By:
David Watson

Reviewed By:
Simon Levene

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Judgment

Judgment, in law, the reasons were given by a court or tribunal for the order that it proposes to make. A typical example is at the end of a civil claim for damages, where the judge will review the evidence, make findings of fact, and announce the final award of damages. The award itself is not the judgment. Judgments may be given orally or in writing. An extempore judgment is one that is given without preparation; a reserved judgment is one in which the judge adjourns the case to prepare and deliver a more formal judgment at a later date.

The term is also used to mean the judicial determination of the rights and obligations of the parties to a civil action. Judgments are generally classified as final judgments and interlocutory judgments. In a final judgment, a court or referee makes a complete and definitive disposal of all issues in the action; final judgments made in cases in which the defendant (the person against whom the action is brought) offers no defence to the complaint made by the plaintiff (the person who brought the action to court) are called default judgments. In an interlocutory judgment, the court determines some of the rights of the parties, but reserves for future determination the unsettled issues in the action and the extent of the relief to be given the plaintiff. The party to whom relief is given in the form of a judgment for money damages is called a judgment creditor and the adverse party is called a judgment debtor.

As well as money judgments, the court may issue an injunction. A failure to comply with the injunction is a contempt of court, and the person in contempt may be brought back before the court to be penalized. Enforcement of a judgment debt takes a number of forms. An early step is to question the judgment debtor in court as to his or her resources. Subsequently, enforcement may be the attachment of property or earnings, by garnishee proceedings—diverting a debt owed by another party to the judgment debtor (most commonly a bank balance)—or by putting a charge on land owned by the judgment debtor.

Reviewed By:
Simon Levene

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Judgment
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Criminal Procedure

Criminal Procedure, legal system for determining the guilt or innocence of a person accused of a crime. In most English-speaking countries, the heart of the system is the presumption of innocence, whereby a defendant is innocent until proven guilty. In any criminal case, it is up to the prosecution to prove the elements of the offence that make up guilt. The presumption takes further expression in the right of an accused not to give evidence (see right of silence), the right of any witness not to answer questions that might incriminate the answerer, and the right to cross-examine all prosecution witnesses. In England and Wales, a defendant no longer has the absolute right to be prosecuted only once for an alleged crime (see double jeopardy).

The law in the United Kingdom protects the citizen’s rights in the investigative process. The search and seizure of property is governed by rules which generally call for the police to obtain search warrants from magistrates: these are only available when the police can show a reasonable suspicion of the presence of evidence in the property, and they may not be issued for police to undertake so-called “fishing expeditions” on the off-chance that a householder may have relevant evidence. Arrest powers are also circumscribed, and people held by the police are entitled to certain rights while in custody and being questioned: if these are infringed the prosecution may be prevented from bringing confessions or other evidence into court at the trial.

After an arrest, the suspect must either be released within a set period of time or charged with an offence. If there is a charge, the accused must be brought before a court as quickly as possible, or released on bail and told when to attend court. The accused is, first of all, brought to a magistrate’s court, which must decide how to deal with him or her. Magistrates should grant bail unless there is a reason for detention, such as the probability of the accused absconding, committing further offences, or interfering with witnesses at the trial. If any of these is likely, the court will remand the accused in custody. Bail may be granted subject to conditions, such as the accused living at a certain address, or keeping a curfew (staying indoors between certain times), or subject to a surety, which is the guarantee of money from a friend should the accused fail to return to court to answer the bail. In England and Wales, a deposit of money may no longer be taken from the accused.

The process of determining the outcome of the case also takes place in the magistrate’s court. The vast majority of criminal offences are dealt with summarily by magistrates, who have powers to imprison people for up to 6 months for each offence, up to a maximum of 12 months. Many crimes are triable only summarily and the accused has no choice of where to be tried. The most serious crimes may not be tried by magistrates. For those offences in between (“either way” offences), the magistrates must decide which procedure is suitable, depending on the gravity and complexity of the case, but the accused may always choose to be tried by a jury.

A notable difference between magistrate and jury trial in England and Wales is that magistrates may leave a case part-heard for some time—even weeks—and return to it when another day is available. Juries hear cases without a break. If the magistrates find the defendant guilty, they may sentence him or her themselves, or if they think the matter too grave for their powers, they may pass it to the Crown Court, which has the power to pass more severe sentences. They should not do so unless there is something that became apparent in the course of the trial that makes the case more serious; if it is apparent from the start that the case is a grave one, they should send it to Crown Court for trial.

The case will then be listed for a trial date in the Crown Court. The defendant remains on bail or remanded in custody. A defendant’s first appearance before the Crown Court is known as a “plea and directions” hearing. If the defendant pleads guilty, the court need only prepare for a sentencing hearing. If the defendant pleads “not guilty”, a date will be set for the trial, and the court gives directions to ensure that the case will be ready in time. For example, it may be necessary to simplify complex documents or to provide video links for witnesses who cannot come to court. Preliminary points of law, which may determine whether the defendant pleads guilty or not guilty, or which affect the evidence that the prosecution will call, can also be determined at preliminary hearings.

The charge sheet in the Crown Court is known as an indictment: this may contain any number of counts (or charges), but each count may only allege a single offence. The prosecution has to prove the charges, which it does either by calling witnesses to give evidence, or by reading out agreed on witness statements. It will often be the duty of the prosecution to “negative” certain defences: for example, if the question of self-defence is raised in an assault case, the prosecution has to prove that the defendant did not act in self-defence.

A defendant is not obliged to answer questions during the investigation of the offence, although the jury may draw unfavourable inferences from his or her silence. Nor is the defendant obliged to give evidence on his or her own behalf at the trial, though again the jury may draw unfavourable inferences if he or she does not.

The judge presides over the trial, rules on matters of law, and sums up the case to the jury. The jury is obliged to accept his or her rulings on the law, but it is the jury that judges all questions of fact. Although the jury is required to return a unanimous verdict, the court can in certain circumstances accept a verdict by a majority of 10 to 2 or 11 to 1.

When the verdict of the jury is “not guilty”, the defendant is released. The old absolute rule against double jeopardy has been abolished, and under certain limited circumstances, the defendant can be tried again for an offence of which he or she has been previously acquitted.

Where a defendant pleads guilty, or the jury returns a verdict of guilty, the judge proceeds to sentence for the offence. Pre-sentence reports from the probation service are usually prepared, though a judge is not obliged to seek such reports. Where there is drug abuse or a suspicion of mental illness a medical report is commonly sought as well. A judge will usually order a report where a sentence of imprisonment is being considered, but such a report is not necessary where the offence is so serious that the only possible sentence is a long prison term.

After conviction, a defendant may appeal against the verdict and the sentence. Appeals from the magistrate’s court go to the Crown Court, where a judge sits with two or more magistrates who did not hear the original case; the appeal amounts to a complete rehearing of the case. Appeals from Crown Court trials go to the Court of Appeal. A defendant does not need permission to appeal from the magistrates to the Crown Court, but permission is needed to appeal from the Crown Court to the Court of Appeal. A defendant may also appeal from the magistrates’ court to the Divisional Court of the High Court where the appeal is on an issue of pure law.

If the defendant is imprisoned, he or she will usually be released after serving a proportion of the sentence, on parole. For longer-serving prisoners this release is not automatic; a parole board examines the prisoner’s disciplinary record in prison, and decides how likely it is that he or she will reoffend. A released prisoner may be liable to be recalled to prison if he or she commits an offence while on parole.

This account is true of the legal system of England and Wales, and its features are present in one form or another in most English-speaking jurisdictions. In most states of the United States the law of procedure is based on the English common law. European jurisdictions have a more inquisitorial system of criminal justice, where the examining magistrates are involved in the investigation of crime, and the trial judges—often more than one—are more involved in the examination of witnesses and the direction of the trial. In some jurisdictions, the defendant may be required to answer questions.

Contributed By:
David Watson

Reviewed By:
Simon Levene

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Evidence

I INTRODUCTION

Evidence, the means by which disputed facts are proved to be true or untrue in any trial before a court of law or an agency that functions like a court. Because English law is committed to a rational rather than a formalistic system of evidence, no value is assigned to the form or the quantity of evidence offered. Effectiveness is generally determined by how persuasive the evidence seems, either to a judge or to a jury where that is the tribunal of fact. In a few cases, formal rules are enforced. Some transactions, such as wills or transfers of land, must be evidenced by written documents.

Yoon Ahn

II LAW OF EVIDENCE IN ENGLAND

English evidence law contains more detailed rules of proof than do other legal systems. This is largely attributable to the historic practice of trial by jury. Less strict rules of proof prevail in administrative agencies (for example, employment tribunals) where juries are not used, as well as in trials before judges alone. The following are some of the detailed rules that must be addressed in a legal action.

A Burden of Proof

The burden of producing evidence on a given point, and of persuading the judge or jury of its truth, is assigned by law to one side or the other in a court trial. Best known is the rigorous requirement that the prosecution in a criminal case must prove the defendant’s guilt beyond reasonable doubt. Lesser burdens placed on other litigants (parties that take part in a court action) typically involve proving their case by a balance of probabilities. Thus, a person may be found not guilty of manslaughter for a death occurring in a car crash when guilt is not proved beyond reasonable doubt. That person can, however, still be held liable for damages in a civil action for the same death, and on the same evidence, because negligence need only be proved on the balance of probability.

Yoon Ahn

B Admissibility

Rules of admissibility determine which items of evidence judges or juries may be permitted to hear (or see or read). Generally, if evidence is relevant it is admissible. Nevertheless, certain facts that are logically relevant and of considerable evidential force are still not legally admissible because of their supposed tendency to “confuse and mislead the jury”.

C Relevance

The evidence is relevant when it has a tendency “in reason” to prove or disprove disputed facts. No distinction is made between direct and circumstantial evidence. Thus, direct testimony of an eyewitness is relevant because it can show that an event occurred. Using an article found at the scene of a crime to show that its owner was present may have less probative force in the eyes of a jury, but it is equally admissible, and it is for the jury to decide what weight to attach to it.

Although it will usually be obvious whether evidence is relevant, it will be for the judge to decide whether it actually is so. It is also the judge’s task to decide whether, even if relevant, evidence should be put before the jury. Under certain circumstances, for example, a defendant’s criminal record may be put before a jury. The prosecution may apply to do this, and the judge will have to decide whether the requirements of the Criminal Justice Act 2003 have been satisfied and whether it would be fair to admit the evidence.

D Hearsay

Hearsay evidence consists of statements made out of court by someone who is not present to testify under oath at a trial.

Until the passage of the Criminal Justice Act 2003, most hearsay evidence was inadmissible in criminal cases. That Act allowed the admission of hearsay evidence in a number of cases, chiefly: where a witness is unavailable; statements in business documents; information that is already in the public domain; evidence of reputation, character, or family tradition; statements made in such emotionally overpowering circumstances “that the possibility of concoction or distortion can be disregarded”; confessions; and material upon which an expert witness relies.

In civil cases, either party may rely on hearsay evidence by serving on the other parties in advance of the trial a notice containing details of the hearsay.

E Witnesses

Nearly all persons with knowledge relevant to the case can testify; only those limited by extreme youth or mental incapacity are precluded. Witnesses may state only their own knowledge and are required to express facts rather than opinions. However, a special category of expert witnesses also exists. Experts frequently utilize hearsay and routinely express opinions. Doctors, for example, can testify as to the causes of death and injury; through training and experience, they are better qualified to form an opinion than the jurors (see Forensic Medicine).

Legal evidence is not limited to the sworn testimony of witnesses. Specific objects, when identified by spoken testimony, may often be introduced in evidence when their existence or appearance tends to prove or disprove an alleged fact. Thus, models, parts of machinery, weapons, clothing, and documents may generally be introduced in evidence. Interpreters give evidence of what non-English speaking witnesses have said.

F Privileges

Except for the accused party, anyone can be compelled to be a witness in a trial, but not every question asked must be answered. Facts that need not be disclosed on demand are known as privileged information. Information may be privileged even when the response would serve the cause of truth and justice.

Only powerful social interests, however, can justify the refusal to answer questions, so privileges are few. Among those established is the need of the nation to protect military and diplomatic secrets, often called Public Interest Immunity. A witness cannot generally be forced to answer a question that is self-incriminating.

In addition, some disclosures made in confidence need not be revealed. Lawyers cannot repeat what their clients have told them privately. However, the spouse of the accused is competent to give evidence for the prosecution, and can generally be compelled to give evidence on behalf of the accused.

G Corroboration

Corroboration is independent, admissible, and credible evidence tending to confirm that the accused has committed the crime; it is rarely required. A jury will be warned, however, that it may be dangerous to convict on the uncorroborated evidence of a particular witness such as an accomplice.

Yoon Ahn

III EVIDENCE IN OTHER JURISDICTIONS

The rules of evidence vary throughout the world. Western Europe generally follows a civil law tradition in trial procedure and consequently employs quite different rules of evidence. The codes there are nearly silent on the subject of admissibility, most probably because trial by jury is unknown. Witnesses are questioned by judges rather than by lawyers, thus minimizing disputes about which questions are permissible. European civil and criminal codes allow witnesses privileges similar to those found in the English legal tradition, although they are generally less protective of the accused party. The legal codes of Japan are heavily based on German laws, and still resemble them to some extent, but the post-World War II constitution also incorporated many protections of the accused found in English law.

Reviewed By:
Simon Levene

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Canon Law

I INTRODUCTION

Canon Law (Greek, kanon, “rule” or “measure”), usually, the body of legislation of hierarchical Christian Churches dealing with matters of constitution or discipline. Although all religions have regulations, the term applies mainly to the formal systems of the Roman Catholic, Orthodox, and Anglican communions. It is distinguished from the civil or secular law, but conflict can arise in areas of mutual concern (for example, marriage and divorce). Canon law represents the outer limits of Church law, and within those limits, members of the hierarchy from the pope to parish priests are free to issue additional rules, as long as they do not contradict the canons or canonically authorized documents.

II COMPONENTS

In its origins, canon law consisted of the enactments of councils or synods of bishops, and the Anglican and Orthodox Churches so restrict it today. The Roman Catholic Church also recognizes the authority of the pope to make universal law and that certain customary practices may acquire the force of law. The Roman Catholic Church has by far the most elaborate body of law and, to provide training in it, has chartered graduate faculties in a number of universities throughout the world. The doctorate in canon law requires at least four years of study beyond the Bachelor of Arts degree. Each diocese has a Church court or tribunal staffed by canon lawyers. In modern times diocesan Church courts have dealt almost exclusively with marriage nullity cases.

The full range of canon law in contemporary times may be seen in the Roman Catholic Church, which promulgated a revised Latin code in 1983. Promulgated by the authority of Pope John Paul II, this code consists of seven books for a total of 1,752 canons. Each book is divided into titles, but in the larger books, the titles are grouped in parts and even in sections. A Code of Canons of the [Roman Catholic] Eastern Churches was promulgated in 1990.

Book One, “General Norms”, includes 203 canons under 11 titles: ecclesiastical laws (definition and application); custom; general decrees and instructions; individual administrative acts (precepts, rescripts, privileges, and dispensations); statutes and rules of order; physical and juridic persons; juridic acts; the power of governance; ecclesiastical offices; prescription; and the computation of time.

Book Two, “The People of God”, is, from a theological perspective, the most significant book. Its 543 canons are organized into three parts: “The Christian Faithful”, “The Hierarchical Constitution of the Church”, and “Institutes [communities] of Consecrated Life and Societies of Apostolic Life”. Among the Christian faithful a distinction is made between clergy and laity, and their respective rights and duties are spelled out. The hierarchical constitution of the Church establishes the supreme authority (the Roman pontiff and the college of bishops, the synod of bishops, the cardinals, the Roman Curia, and papal legates) and the particular churches (dioceses, archdioceses [ecclesiastical provinces], episcopal conferences, as well as parishes and deaneries). Part Three regulates the various types of religious communities: institutes of consecrated life (for example, Jesuits, Franciscans, Visitation nuns), secular institutes (for example, Opus Dei), and societies of apostolic life (for example, Paulists, Sulpicians, Vincentians).

Book Three, “The Church’s Teaching Mission”, consists of 87 canons concerned with preaching, catechizing, missionary activity, Christian education, publications, and the profession of faith.

Book Four, “The Church’s Sanctifying Role”, regulates in 420 canons the seven sacraments: baptism, confirmation, the Holy Eucharist, penance, the anointing of the sick, holy orders, and matrimony. The canons prescribe the proper minister for each, the necessary dispositions on the part of the recipient, and the ceremonial to be observed. The second part of the book discusses other religious acts: sacramentals (for example, blessings and exorcisms); the Liturgy of the Hours, or divine office; funerals; devotion to the saints (sacred images and relics); vows and oaths. The third part is concerned with sacred places (churches and cemeteries) and sacred times (holy days and days of fast and abstinence).

Book Five, “The Temporal Goods of the Church”, regulates property in 57 canons: its acquisition, administration, and alienation. It also deals with pious wills and pious foundations.

Book Six, “Sanctions in the Church”, consists of 89 canons concerned with ecclesiastical penalties such as excommunication, interdict, and suspension. Various crimes and offences are listed with specific sanctions attached. Types of delicts (or offences against the law) are as follows: apostasy, heresy, and schism (against religion and the unity of the Church); physical violence, incitement to disobedience, and unauthorized alienation of property (against ecclesiastical authorities and the liberty of the Church); simulation of the sacraments, unauthorized ordinations, and violation of the seal of confession (usurpation of ecclesiastical functions); falsification of Church documents and injury of a person’s good name; clerics engaging in business or trade or attempting marriage (against special obligations); homicide and abortion (against human life and liberty).

Book Seven, “On Processes”, treats procedural law in 353 canons. Every diocesan bishop is required to appoint a judicial vicar, or official is, who is to have ordinary jurisdiction over all cases except those that the bishop may reserve to himself. Other officials include the promoter of justice and the defender of the bond (relating to holy orders and matrimony). The tribunal of the second instance, or court of appeal, is the archdiocesan, or metropolitan, court. The pope, as the supreme judge for the whole Roman Catholic world, may hear cases himself. The ordinary tribunal for receiving appeals to the Holy See is the Roman Rota. The Supreme Tribunal of the Apostolic Signatura is competent to hear complaints against a sentence of the Rota or any act of an ecclesiastical administrative power alleging the error of law or procedure. The code concludes with a section on administrative procedure. In each diocese, an office or council may be permanently established to resolve disputes arising from the exercise of an administrative authority in the Church. A special procedure is provided for the removal and transfer of pastors.

Laws of the Church, as well as those of the state, bind their subjects in conscience. The obligation in conscience does not arise immediately from the laws themselves but from the divine plan, in which people are envisioned as living in both a civil and an ecclesiastical society. Church and state are the judges of what is necessary to realize the common good. Their laws carry a legal obligation of greater or lesser weight, depending on the importance of specific statutes in achieving that end.

The Code of Canon Law itself lays down certain principles of interpretation. Laws that impose a penalty, for example, or restrict the free exercise of rights, or contain an exception from the law are to be strictly interpreted. In canon law, unlike common law, an interpretation given by a court in a judicial sentence does not set a precedent; it has no force of law and binds only those people affected. For an authentic interpretation of the code, a special Roman commission was established in 1917.

III HISTORY

The beginning of canon law may be seen in the New Testament (see Acts 15; 1 Corinthians 11). During the 2nd and 3rd centuries, a number of Church orders (for example, the Didache and the Apostolic Tradition) described as normative certain customary practices of the community. Canon law in the sense of enacted legislation originated in the 4th-century regional councils held in Asia Minor. The enactments of these councils (Ancyra, Neocaesarea, Antioch, Gangra, and Laodicea), together with those of the ecumenical councils of Nicaea (325), Constantinople (381), and Chalcedon (451), formed the nucleus of subsequent collections. They dealt with the structure of the Church (the provincial and patriarchal organization), the dignity of the clergy, the process of reconciling sinners, and Christian life in general.

The oldest Greek canonical collection preserved in the original text is the Synagogue Canonum (around 550) in 50 titles by Johannes Scholasticus. Instead of a chronological arrangement, the canons are grouped systematically according to the subject matter. Another innovation was the accordance of canonical authority to rulings of Church fathers, especially St Basil. The Council of Trullo (692), in giving formal approval to the preceding conciliar legislation and patristic writings, established the basic code for the Eastern Churches that is still normative for the Orthodox.

In the West, the most important canonical collection of the early centuries was made in the 6th century by Dionysius Exiguus. He translated into Latin the canons of the Eastern councils and added 39 papal decretals. The rulings of the popes were thus put on a level with the conciliar law. After the disintegration of the Roman Empire, canon law developed independently in the different kingdoms. National collections were made in which local legislation, intermingled with elements of the Germanic law, were added to the ancient code. Because conciliar activity was particularly intense in Spain, the collection known as the Hispana (later called the Isidoriana after St Isidore of Seville) proved to be outstanding. Of great significance for the future was the institution of the practice of private penance by the Irish monks.

Collections made at the time of Charlemagne (in around 800) and the Gregorian reform in around 1050 reflect the attempt to restore traditional discipline. Great confusion persisted, however, insofar as certain practices accepted in the Germanic law and the penitentials (for example, remarriage after adultery) were in conflict with the programme of the reformers. Ivo of Chartres prepared in about 1095 a set of rules and principles for interpreting and harmonizing texts. The actual work of harmonization was done in about 1140 by Gratian, who is called the father of the science of canon law. Shortly after the revival of Roman law studies at the University of Bologna, Gratian collected all the canon law from the earliest popes and councils up to the Second Lateran Council (1139) in his Decretum or Concordance of Discordant Canons. With its appearance, the period of the is antique came to a close.

The scientific study of law stimulated by the Decretum encouraged the papacy to resolve disputed points and supply needed legislation, thus inaugurating the ius novum. Over the next century, thousands of papal decretals were issued and gradually collected in five compilationes. Compilatio Tertia, consisting of decretals from the first 12 years of his reign, was ordered by Innocent III in 1210 to be used in courts and law schools, thus becoming the first collection in the West to be officially promulgated. Gregory IX commissioned Raymond of Peñafort to organize the five compilationes in one collection, which was promulgated in 1234 and became known as the Extravagantes. Two other official collections were made later: the Liber Sextus (1298) of Boniface VIII and the Constitutiones Clementinae (1317). The Extravagantes of John XXII and the Extravagantes Communes were privately compiled. In 1503 the legist Jean Chappuis printed and published in Paris, under the title Corpus Iuris Canonici, the Decretum of Gratian and the three official and two private collections of decretals. The Corpus, along with the decrees of the Council of Trent (1545-1563), remained the fundamental law of the Roman Catholic Church until the Codex Iuris Canonici appeared in 1917. After the theological updating of the Second Vatican Council (1962-1965), it became necessary for the Roman Catholic Church to undertake a thorough revision of the 1917 code. A special commission was established in 1963, which in 1980 presented the draft of a completely new code. Pope John Paul II, after making a number of revisions, promulgated it on January 25, 1983; it took effect on November 27, 1983.

The Corpus continues to have some validity for the Church of England, which issued its first complete, free-standing Code of Canons in 1603. The medieval law is presupposed except where it has been affected by contrary statute or custom in England. These canons stood virtually unchanged until the mid-19th century when a process of amendments began. The Convocations of Canterbury and York in 1964 and 1969 promulgated a fully revised code that nevertheless maintained the same understanding of the relationship between the present and the medieval tradition. Each of the national churches of the Anglican Communion (for example, Australia, the United States, and Canada) has its own canons, which may or may not directly reference those of the Church of England, though they are similar in format.

Plans have been under way for more than a quarter of a century for the first Great Synod of Eastern Orthodoxy to be held since the 8th century. Among the topics for further study is the codification of the Holy Canons. Current canon law developed largely in response to the Great Schism of 1054.

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Declaration of Paris

Declaration of Paris, agreement establishing certain principles of international maritime law in times of war, signed by representatives of Great Britain, Austria, France, Prussia, Russia, Sardinia, and the Ottoman Empire. It was signed in Paris on April 16, 1856. The agreement declared that privateering should be abolished; that enemy goods on a neutral vessel, with the exception of contraband of war, were to be immune from capture by a belligerent; that neutral goods on enemy vessels, with the exception of contraband of war, were not liable to capture; and that a blockade, in order to be binding, must be effectively maintained by a force sufficient to prevent enemy access to the coast. The United States refused to support the declaration on the grounds that it would have to depend on privateers to operate against enemy shipping in times of war because it had no navy. Spain, Mexico, Uruguay, Bolivia, and Venezuela also refused to adhere to the declaration. During the Spanish-American War (1898), however, the two sides declared their intention of abiding by the principles of the Declaration of Paris.

The development of large navies by Great Britain, France, Russia, Austria-Hungary [before 1914], and the United States in the late 19th and early 20th centuries rendered the whole issue of privateering obsolete, while the actions of the various belligerents in World War I (1914-1918) virtually invalidated the provisions concerning neutral vessels. The declaration’s provision concerning blockades is, however, still a principle of international law.

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Law, (Andrew) Bonar

I INTRODUCTION

Law, (Andrew) Bonar (1858-1923), British statesman and industrialist, British Prime Minister (1922-1923). He was born in New Brunswick, Canada, and following the death of his mother moved to Glasgow, Scotland. At the age of 16, he was employed in his uncle’s ironworks in Glasgow, and he soon rose to a senior position in the firm. In 1888 Law became a partner in one of the largest iron-manufacturing and exporting firms in Glasgow. After amassing a large fortune, he retired from business and entered politics.

II RISE TO PROMINENCE

He was elected to the House of Commons for Glasgow Blackfriars in 1900 and was appointed Secretary to the Board of Trade in the government of Arthur Balfour in 1902, where he was an advocate, along with Joseph Chamberlain, of tariff reform. He succeeded Balfour as leader of the Conservative Party in 1911 as a compromise candidate. A supporter of the formation of a coalition government at the outbreak of World War I, he was appointed a secretary to the colonies by H. H. Asquith in the coalition formed in May 1915. However, he undermined Asquith’s coalition, and turned down the invitation of George V to form a government; instead, he recommended that David Lloyd George is made prime minister. From 1916 to 1918 Law was Chancellor of the Exchequer in Lloyd George’s coalition ministry, in which role he successfully managed the finances for the war, and, from 1919 to 1921, he was Lord Privy Seal.

III BREAKING THE COALITION

In 1922 Law headed the withdrawal of the Conservative Party from the coalition Cabinet, with a famous speech to Conservative MPs at the Carlton Club that October and he contributed largely to the party’s victory in the subsequent general election. He became prime minister but resigned in 1923 after only seven months in office because of ill health. His Chancellor of the Exchequer, Stanley Baldwin, succeeded him as prime minister.

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