Human Rights and Civil Liberties

I INTRODUCTION

Human Rights and Civil Liberties, the liberty and justice that a citizen or person expects, or is entitled to expect, in the content and operation of the law. The terms are not defined in law: they overlap and are often used to mean the same thing. Rights may be regarded as positive, as they confer the freedom to do something, whereas liberties are negative in that they place limits on the state’s power to control the individual. Examples of civil liberties include the prohibition of torture, while perhaps the most basic of commonly recognized rights is the right to life.

Who possesses rights and liberties are controversial and is as much a philosophical question as a legal one. However, it is generally accepted that the state is obliged to protect and observe the basic rights and liberties of all persons, whether they are citizens of that nation or foreign nationals. Nations are constantly seeking a balance between the freedoms of the individual, and the interests of those adversely affected by the exercise of that freedom, whether the state, individuals, or animals.

II HISTORY

The concept of inalienable rights and liberties was first articulated by the ancient Greek philosophers. Socrates was found guilty of corrupting the youth of Athens through speaking his mind. He refused to renounce this exercise of freedom of speech and was condemned to death. Aristotle, in his Nicomachean Ethics, presupposed elements of what are now basic rights. This was also the case in parts of the Bible, as well as in the philosophical writings of the Roman lawyer and statesman Cicero and the Greek biographer Plutarch. The Stoic philosophers later formulated an explicit doctrine of the rights of the individual. Conversely, the autocratic and at times brutal nature of the Roman Empire did not provide a fertile ground for these concepts. Similarly, during the medieval period, the hierarchical feudal societies did not entertain such concepts. However, the theories of St Thomas Aquinas, in his attempt to reconcile Christian doctrine with the pre-Christian learning, demand the acknowledgement of some basic rights, and he formulated what was perhaps the first justification for civil disobedience, that is, breaking the law to highlight its injustice.

III EARLY DEVELOPMENT

The feudal system’s refusal to acknowledge a source of authority beyond the commands of superiors meant that civil rights had no meaning; individual freedom can only survive if appeal can be made to a legal system that binds both the ruler and the ruled. This limitation on government received its first operative expression in Magna Carta of 1215 (see below), which set limits on the power of King John. Magna Carta was not born of democratic or egalitarian beliefs, or from any abstract concept of human rights; it was a treaty, almost a contract, between the king and the most powerful nobles. It defined the relationship between them and established a legal order to which the king was subject. In its terms it would appear to be universal, but it is doubtful whether it was of much benefit to the ordinary people, who were often subject to the arbitrary command of the very nobles who had forced the charter on the king. Even in the more exalted levels of society, the idea of rule by a king’s divine right, above human law, persisted, and led to fierce struggles between Crown and Parliament during the Tudor and Stuart dynasties.

On the European continent, the struggle between authoritarianism and liberty developed more around religious issues. During the Reformation, freedom of religious belief and practice was a primary concern. Tolerance was rare: as late as 1612 members of the Unitarian sect were burned in England for their heresy. The Inquisition in Spain has become a byword for savage intolerance. Only by the end of the 18th century was the ideal of religious toleration firmly established in Western civilization.

As a result of the English, American, and French revolutions, libertarian ideals were embodied to a greater or lesser extent in the structure of government. In England the struggle between Parliament (not a democratic institution in the modern sense) and the Stuart monarchy saw an inconclusive deposition and restoration of the monarchy, and finally the successful Glorious Revolution of 1688 (so called because it was carried out without bloodshed in England). The last Stuart king, James II, was expelled, having tried to resurrect the monarch’s absolute power in his religious dissent from the national Church. He was replaced by William and Mary, who assented to the Bill of Rights of the same year. This guaranteed constitutional government and led, eventually, to the present-day doctrine of the absolute supremacy of Parliament (although this has recently been under pressure from developments in the legislative powers of the European Union), as the monarch’s powers were gradually limited by statute and custom. The system of constitutional monarchy was articulated by the contemporary English philosopher John Locke, and his writings profoundly influenced the leaders of the American colonies and other libertarians over the following century.

The 17th and 18th centuries also witnessed the growth of freedom of the individual in England. In the common law courts, in particular, judges became more concerned for the rights of those accused of a crime, and procedural fairness became a priority in criminal and civil law.

IV THE SPREAD OF CIVIL LIBERTIES

British colonists took the concepts of limited government and individual freedom to the New World: the first colonists were refugees from religious persecution. The early laws of the first states reflected interest in the reform of criminal procedure developing in England. The American and subsequently the French revolutions both inspired and were inspired by writings that laid the foundations of modern ideas of civil liberties. Notable authors of the time were the French philosophers Voltaire and Jean-Jacques Rousseau, the British reformer John Wilkes and philosopher Jeremy Bentham, the Anglo-American writer Thomas Paine, and the American statesman Thomas Jefferson. The Declaration of the Rights of Man and of the Citizen in France and the Bill of Rights in the United States Constitution formally set out libertarian principles that are central to modern democracy.

Although civil liberties are now considered an integral part of democratic government, it would be a mistake to see this period as a democratic one in a modern sense. These principles were developed when political power in England was in the hands of an aristocratic upper class and of a mercantile class almost as small. Many of the American founding fathers did not favour democracy in the modern sense. Conversely, democracy as a means of determining the composition of government has historically been no guarantee of civil liberties: enforcement of the law may be arbitrary or despotic, and minorities may have no effective safeguards against tyranny.

V HUMAN RIGHTS IN THE UNITED KINGDOM

Basic human rights and civil liberties in the United Kingdom are guaranteed by the Human Rights Act 1998. The United Kingdom does not have a written constitution enshrining the rights of citizens, as in the United States, and this Act is as close as the United Kingdom gets to a comprehensive statement of rights and freedoms. The Act became law on October 2, 2000. It makes the basic rights of the individual contained in the European Convention on Human Rights part of UK law. Under the Act public bodies, such as government departments, the National Health Service, and local councils, must act in accordance with human rights. Judges must also give effect to human rights in the way they decide cases.

Many journalists and commentators forecast a flood of litigation as a result of the Act, but this did not prove to be the case. In reality, the Act did not make any major changes to the way cases are decided. Judges had considered human rights in making their decisions even before the Act came into force, and continue to do so now.

Before the Human Rights Act came into existence, human rights in the United Kingdom were mostly protected by the courts. Historically speaking the rights and liberties of the British citizen were protected by Magna Carta, whose most famous clause guarantees a fair system of justice, or due process; and the Bill of Rights, which established the supremacy of Parliament, and in a modern democracy guarantees, for example, that nobody shall be taxed without representation. Comparing those old documents with the new Act, it can be seen that whereas Magna Carta sought to guarantee a fair system of justice, Article 6 of the European Convention (which is now part of UK law under the Act) guarantees the right to a fair trial. While many journalists, and some politicians, characterize human rights as a modern concept, its origins are ancient and reflected in Magna Carta and the Bill of Rights—it is just the term “human rights” that is modern, and even that term has been common parlance since shortly after World War II.

In deciding whether an individuals’ rights have been violated, judges must balance that individual’s rights and interests against the needs and interest of society at large and any individuals or groups who have an interest in the case. The key question is whether the limits that have been placed on an individual’s freedom to act are proportionate to the reason for those limitations.

As an example of the balancing of individual rights against competing interests, the judicial committee of the House of Lords was recently asked to consider the lawfulness of the indefinite detention without trial of foreign nationals believed to have terrorist connections. The UK government argued that the interests of national security and the human rights of British citizens would be threatened if the suspects were released. The detainees argued that they were entitled to a trial in accordance with Article 6 of the European Convention. The House of Lords found in favour of the detainees, concluding that while detention without trial could be lawful in exceptional cases, the interests of national security and the British people were not sufficiently threatened by these detainees to justify the government’s actions.

The case could be looked at in this way: the interests of the individual and society were put on the scales; in view of the serious interference with human rights involved in the case, the government was required to show very strong justification for its actions; the judges concluded that the government was unable to show sufficiently strong justification, and the detainees, therefore, won the case.

Even before the Human Rights Act judges created laws to protect the citizen from the unreasonable or unfair exercise of power by government and state, and these laws continue to exist today. Decisions made unreasonably by government bodies could be quashed, and the government could be required to take the decision again or pay compensation for the impact of the unfair decision on the individual. The creation of a criminal law system that strives for procedural fairness is mostly the work of judges. Within that field other human rights are considered: judges should always aim to interpret a statute creating criminal offences in favour of the accused, and to ensure laws are not creating retrospective legislation, that is, making an act punishable now that was not punishable when it was performed. The degree of protection that judges afford the citizen waxes and wanes, however, with judicial fashion and the political climate.

Judges in the United Kingdom do not, however, have the power to overrule Parliament. If an Act of Parliament clearly permits the violation of human rights or civil liberties, judges are technically powerless to stop it. However, some judges are always willing to interpret the words of Parliament in a way that protects the individual, even if this means applying an illogical or wholly unsupportable interpretation. Some would say that in doing that judges are acting beyond their powers—others would say that this is a necessary last defence against the oppression of the individual by the state. Where judges feel that it is not possible to interpret the words of Parliament in accordance with human rights their only power is to make a “declaration of incompatibility” under the Human Rights Act. This effectively requires Parliament to look at the matter again but does not change the law, nor does it oblige Parliament to change the law.

Convention in the governance of the country and the application of the laws continues to provide a wide-ranging source of rights, even after the coming into force of the Act. As an example of a convention that is observed by judges, it is the guiding principle of the unwritten British constitution that everybody is free to do what he or she likes, so long as it has not been prohibited. Whether this is in fact true is a controversial question. Other more specific conventions protect such rights as the right not to have property confiscated without compensation; or the right to equal treatment, by making everybody subject to the law of the land. The content of these conventions is difficult to describe, since they are informal. For this reason they provide uncertain protection, but their content is reflected in the rights protected by the European convention and the Human Rights Act.

VI HUMAN RIGHTS UNDER THE EUROPEAN CONVENTION

As we have already seen, the European Convention on Human Rights is now a part of UK law. The convention was inspired by all European nations’ abhorrence of the Holocaust. Following World War II there was pan-European determination to make a statement of the basic rights of every individual in an effort to prevent a repeat of the Holocaust. The Convention, signed in 1950 by most European nations including the United Kingdom, established a court and a commission, to investigate complaints of human rights violations. Individuals from the states who have signed the Convention have the right to bring a case before the court, although they must first take their case through the courts in their home country.

The Convention contains a number of articles, each of which guarantees a certain right or freedom. The Convention operates on the basis that while each right cannot be violated by the nations who signed the Convention, those states have a “margin of appreciation” in determining the content and extent of each right. It is this concept of a margin of appreciation that underlies the balancing act set out above, and seen in the recent House of Lords case. The Convention’s standard formulation of the state’s margin of appreciation is that the right or freedom “…shall be subject only to such limitations as are prescribed by law and are necessary for a democratic society…”.

By and large the rights contained in the European Convention are recognized around the world, although that is not to say that those rights are always observed—consider the ethnic cleansing that occurred during the Yugoslav conflict of the 1990s. It remains to be seen whether what are termed “second generation” rights, such as the right to health care or to a decent standard of living, will become recognized throughout the world. Given the difficulties in ensuring the protection of the established basic rights, it may be some time before international institutions and national government are able to address the next generation of rights and liberties.

The Convention guarantees the following basic rights:

The Right to Life—this is commonly regarded as the most basic of all human rights. Article 2 of the convention, which guarantees this right, does not, however, prevent execution as a sentence following conviction before a court of law. Death sentences are no longer common across Europe, but they were not uncommon in 1950 when the convention was drawn up.

The Prohibition of Torture—this is one of an absolute rights in the convention. The entire text of Article 3 is “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” There is no margin of appreciation in respect of this right.

The Prohibition of Slavery and Forced Labour—this prohibition is contained in Article 4. There is no margin of appreciation here either, although the convention makes it clear that compulsory national military service and work required to be done in the course of detention imposed as a sentence by a court of law does not fall within the definition of forced labour.

The Right to Liberty and Security—under Article 5 every person is entitled to liberty other than where they are arrested or sentenced to imprisonment in accordance with the law. Any person who has been arrested or detained other than in accordance with applicable laws must have a right to compensation.

The Right to a Fair Trial—this right, contained in Article 6, is the most important human right in the criminal process. Whether the case is civil or criminal, it requires impartiality in the court trying any case, that cases are conducted in public other than in exceptional cases, and that trials are conducted within a reasonable time. In criminal matters, the presumption of innocence and the right to challenge the prosecution case are all protected.

The following rights are also protected under the convention and are expressly subject to the “margin of appreciation”: the right to respect for private and family life (Article 8); the right to freedom of thought, conscience, and religion (Article 9); the right to freedom of expression (Article 10); the right to freedom of assembly and association, including the right to create or join trade unions (Article 11).

This list is not exhaustive. It is intended to give a flavour of the kind of right protected under the convention and now recognized in UK law under the Human Rights Act. In the following sections the role of human rights and civil liberties in a number of different areas is considered.

VII FREEDOM OF SPEECH

The freedom to speak one’s mind, as a citizen, is limited in a number of ways in English law. There have been no substantial changes in the law on freedom of speech following the Human Rights Act—in simple terms a person’s freedom to speak or publicize their views is to be balanced against the interests of those affected. The laws of libel and slander are the most important restrictions. Other restrictions operate in particular areas: for example, public order, national security and official secrets, contempt of court, and blasphemy.

A particular restriction on freedom of speech is the offence of inciting racial hatred, which is widely accepted, and recently became part of UK law. Such an offence depends on an intent to stir up hatred, and is used only for blatant cases of racist demagoguery: it does not make the uttering of racist remarks alone criminal.

In times of war, the balance is drawn more strictly against the exercise of freedom of speech by means of special regulations granting powers to government officials, most notably the power to detain people without trial. While criticism of the conduct of a war has generally not been prevented, the publication or statement of words likely to cause disaffection has been.

The media’s most common concern, in relation to the freedom of speech, is the law on libel. The protection of the press from libel action is granted solely in the reporting of court cases and Parliamentary business. These are very limited exceptions, and the huge costs of libel actions are a constant brake on freedom of speech and the freedom to report. The press was unable to print what it suspected of the late Robert Maxwell, a massive fraudster, until after his death in 1991 because of his constant threats of libel action.

Complaints of irresponsible behaviour by the press have led to threats of further laws of restraint, particularly in its treatment of celebrities. The press industry has responded to this in a form of self-censorship, creating the Press Complaints Commission to deal with allegations of unacceptable conduct. This body is capable of ordering that newspapers print apologies. It aims to draw a line between responsible investigative journalism and abuse. Several similar bodies exist for the broadcast media, which are obliged by law (unlike the press) to be impartial in their coverage of all controversial issues.

There is no right in British law to privacy as such, although the right to respect for private and family life (Article 8 of the European convention) provides a similar right.

The home is protected from invasion by the requirement on the police to obtain a search warrant, but there are exceptions to the requirement, and, perhaps surprisingly, tax investigators have considerably wider powers than police officers. The practice of intercepting telephone conversations may only be carried out by police and security services on a warrant from the home secretary: in 1985 all jurisdiction over this was taken away from the courts and placed with tribunals, which sit in private. There is no comprehensive protection of the home such as exists in the United States, where the courts were able to interpret the Constitution as providing a right to privacy.

The activities of newspapers in investigating and photographing well-known people have caused much concern, especially when they involve such instruments as telescopic camera lenses. Libel, however, rarely provides a protection against the printing of a photograph. The most extreme examples of invasion of privacy have met a legal response, even if its convoluted form indicates the alien nature of a right of privacy to English law. In one case, a newspaper printed a photograph of a well-known actor in a coma. The actor subsequently recovered damages for malicious falsehood, since the way the picture was printed, with an accompanying article, suggested he had cooperated with the newspaper when he had not, and this misrepresented his professional activities. While the court did not recognize a right to privacy, Michael Douglas and Catherine Zeta-Jones famously won their case against Hello! magazine when Hello! took photographs of their wedding without the couple’s permission.

VIII ETHNIC MINORITIES

Black people are more likely to be convicted of a criminal offence than white people: the comparative poverty of the black community (poverty is often an indicator of crime) does not explain this statistically. If convicted, a black person is considerably more likely to be imprisoned than a white person. The only remedies proposed have been rejected as worse than the problem: the suggestion, for example, of choosing juries in some way representative of the defendant’s community seems to threaten the whole concept of trial by jury.

In addition, the number of black males detained with symptoms of schizophrenia appears to be hugely disproportionate: one explanation, possible racism on the part of doctors, seems inadequate, and it has been argued that the stress of being black in the United Kingdom may be a factor. Many allegations of racism are made against the police, and tension between the police and black communities led to riots in the 1980s. The drive to recruit ethnic minorities to the police force has not completely removed mutual suspicion. All these factors suggest that many civil rights may not, in effect, be available to ethnic minorities.

Attempts have been made to secure civil liberties for ethnic minorities by laws against racial discrimination. These have so far been limited in effect because of distaste on the part of lawmakers for positive discrimination, which, while working in favour of those who presently lose out, would also work against others. There is a widespread feeling that such discrimination will only be truly resolved by a process of education of those with racist tendencies; a more general awareness of racism; and an increase in the representation of ethnic minorities in positions of power.

IX OTHERS WHO SUFFER DISCRIMINATION

Although the British system does not overtly discriminate against any group, there are others whose vulnerable position in society it fails to ameliorate. There is no legal protection against discrimination on the grounds of age as such: the only effective action has been successful on the basis that age discrimination was indirect sex discrimination. Elderly people are becoming increasingly vocal on this issue (see Ageism).

There have been attempts to deal with discrimination against disabled people, but perhaps the only effective existing action is that which requires the planning of buildings to take their needs into account, and the recently enacted requirement that premises providing services to the public provide reasonable access for the disabled.

Homosexuals also experience discrimination in some areas in the United Kingdom. While homosexual activity was legalized in 1967 between two consenting adults in private, the law still makes criminal many activities that are not illegal for heterosexuals. However, in 2000 the age of consent for homosexuals was lowered to 16, to bring it in line with that for heterosexuals.

People with criminal convictions are often discriminated against. The law on rehabilitation of offenders has gone some way to remedying this, allowing ex-convicts to ignore their record in, for example, applying for certain jobs, after a time period that varies according to the sentence received. People who have served long prison sentences do not fall within the rules, and there are several exceptions where it is considered necessary for the employer—often the government—to know of any criminal history.

X HUMAN RIGHTS IN THE CRIMINAL PROCESS

The criminal law system has developed a system of rights known as due process in an attempt to ensure a fair hearing for those accused of crimes. The modern system dates in effect from 1898 in England, when defendants were first allowed to give sworn evidence in their own defence; before that, an ancient rule held that they were incompetent to testify because their own interest in the case made them unreliable witnesses.

The most important procedural safeguards come from the presumption of innocence, which requires that the prosecution prove the case against the defendant “beyond reasonable doubt”, and has its paramount expression in the right of silence. The defendant must have the whole case against him or her revealed, and the opportunity to challenge witnesses. A number of miscarriages of justice in England in recent years has led to strict guidelines, which require the prosecution to disclose all the relevant material it has to the defence; convictions obtained where this has not been done are likely to be overturned.

The defendant is also protected during police questioning. Legal advice is now seen as being almost as important as procedural fairness. A scheme is in operation to attempt to obtain a solicitor for all people questioned about a crime, and legal aid is granted in some cases.

Traditional human rights have been eroded in the creation of criminal offences of strict liability: that is, the prosecution needs only prove that the acts complained of were carried out (for example, many driving offences) and any defence then has to be proved by the defendant. This has been justified either because it is the only way of dealing with a serious social problem (such as drunken driving); or because other charges, such as allowing pollution of a river (usually aimed at companies rather than people), are usually only prosecuted when the prosecuting authority thinks the behaviour is culpable. This leaves the defendant’s rights at the discretion of the prosecutor, but this is only an acute problem in the very rare cases when the defendant is a private individual, and the offence carries a serious stigma.

Recent reforms under the Criminal Justice Act 2003 effect major changes in the admissibility of previous convictions as evidence at trial. Previous convictions were generally inadmissible in the past, but under the new law they will be admissible as evidence of guilt. This controversial issue reflects a modern tension in criminal law; on the one hand it is argued that a long list of previous convictions is evidence of a criminal disposition, and relevant to the question of whether an offence has been committed. On the other hand, it is argued that if a jury knows of the defendant’s previous crimes it will be unfairly biased against him or her and that a criminal past does not prove the commission of the offence in question. Recent reforms in criminal justice have tended to place procedural convenience over concerns as to defendants’ rights—rightly or wrongly the UK government is principally concerned with victims’ rights in the criminal process.

The right to jury trial—considered sacrosanct by many—is also reformed under the new Criminal Justice Act. The circumstances in which a defendant will be able to choose trial by jury will be greatly reduced. While these reforms promote procedural efficiency and may well speed up the court process, many doubt whether they promote substantive justice.

In the context of the Human Rights Act, it is well established that the admissibility of previous convictions does not violate the Article 6 right to a fair trial. The admission of previous convictions is common on the continent of Europe and has been for some time. The limitation on jury trial could easily be justified under the margin of appreciation as necessary in the prevention and reduction of crime. Generally speaking, a violation of Article 6 would involve a very serious procedural defect, such as bias on the part of the judge or a jury that was not free to reach its own verdict.

XI INTERNATIONAL CONCERNS

The United Nations has consistently sought to protect basic human rights through the resolutions of the General Assembly and the Security Council. The most far-reaching of these declarations is the United Nations’ Universal Declaration of Human Rights. These declarations are not, however, binding on governments and there are no means of enforcing them.

Efforts to enforce collective agreements between nation states conflict with the right of every state to conduct itself how it sees fit. This tension is unlikely to ever be resolved—the protection of human rights on the international stage has been, and will continue to be, uncertain. The fact that an international agreement asserts a right does not mean that right is in fact guaranteed. All too often when violence erupts in a country, the question of whether widespread human rights abuses can be halted depends on the willingness of other countries to send in troops. Whether it is right to intervene in this way is open to debate. Intervention of this kind has only happened once—in Kosovo, where the United Kingdom and United States sent in troops to halt widespread ethnic cleansing.

Contributed By:
Simon Levene

Code (law)

I INTRODUCTION

Code (law), in jurisprudence, a systematic compilation of law in written form, issued by rulers in former times, and promulgated by legislative authority after the rise of representative governments. Early legal codes were little more than statements of the bodies of customs that had obtained the force of law in civilized communities. The earliest legal code known in its entirety is the Babylonian Code of Hammurabi of the 18th century bc, written in cuneiform and discovered in 1901. Four fragments of an earlier Babylonian cuneiform code, known as the Code of Lipit-Ishtar, were discovered in about 1900 and deciphered in 1948.

II ANCIENT CODES

Some historians include among early codes the Book of the Covenant and the Book of the Law of the Old Testament. The ancient Greek city-states began codifying laws in the 7th century bc. The Laws of Gortyn, named after the ancient town of Gortyna, Crete, are regarded as the closest to a systematic statement of ancient Hellenic law. The Twelve Tables of ancient Roman law are often cited as a classic example of an early code. Other compilations of law include the Hindu Code of Manu, believed to date from about ad 400, and the code of the Chinese Tang dynasty, issued in ad 630.

Of all the codes of antiquity, that of the Roman emperor Justinian I, entitled the Corpus Juris Civilis (Body of Civil Law) and known as the Codex Justinianus, Justinian Code, or simply The Code, most closely resembles the codes of later times. It was in part a compilation and consolidation of statute law, but it lacked the systematic arrangement and the concentration on a single branch of the law, such as criminal law or civil law, which are essential features of later codes.

III DEVELOPMENT OF MODERN CODES

The influence of the Justinian Code was great. Long after Rome fell, Roman law, as codified by Justinian, continued to serve as a source of law in Europe in the form of civil law. Through a 13th-century Spanish code called Siete Partidas (Seven Parts) that was based partly on the Justinian Code, the Justinian Code was later extended to the New World and, with the Siete Partidas, became the basis for the legal systems of most of Latin America.

A modern code is designed to provide a comprehensive statement of the laws in force in a single branch of the law in a logical and convenient arrangement and in precise and unambiguous phraseology. Modern codes include codes of civil, criminal, and public law and codes of civil and criminal procedures.

Statesmen of modern times have regarded legal codes as necessary instruments of national unity and central authority. Napoleon planned the Code Civil des Français, later renamed the Code Napoléon, as a means of consolidating his realm. The Code Napoléon, one of the most important modern codes, is the basis of the legal systems of Belgium, the Netherlands, Romania, Italy, Portugal, Haiti, the state of Louisiana in the United States, and the province of Quebec in Canada. It also influenced the legal systems of a number of Latin American countries.

Other important modern codes include the Danske Lov, proclaimed in 1683 by Christian V of Denmark and Norway; Code Frédéric, or Gesetzbuch (Law Book), proclaimed by the Prussian king Frederick II in 1751 and renamed Landrecht in 1794; and the Gesetzbuch of Germany, issued in 1900, which influenced the later codes of Switzerland, Turkey, and China. Although not a product of secular authority, the Codex Juris Canonici (Code of Canon Law) of the Roman Catholic Church, which came into effect in 1918, is regarded as an important modern code; it marked the culmination of almost 1,900 years of development in the field of canon law.

IV CODES IN ENGLAND AND WALES

In England and Wales, the legal system is based on common law, and codification has largely been a problem of consolidating common and statute law. A pioneer in this work was the British philosopher Jeremy Bentham, who died while working on a codification of constitutional law. His work influenced the later codes adopted by the British government for India; and these in turn influenced codification in England, as was evidenced by the revision of statutes and legal procedure from 1870 to 1885. The Bills of Exchange Act (1882), the Partnership Act (1890), the Sale of Goods Act (1893), and the Marine Insurance Act (1906) are regarded as true codes, because they consolidated common and statute laws in a comprehensive fashion. Occasionally, parliament enacts a statute which simplifies a discrete area of law in which anomalies have arisen: the Theft Act 1968 and the Sexual Offences Act 2003 are examples of this. Such statutes are not proper codes, however, because they deal only with one part of a larger area of law—here, the criminal law generally.

V CODES IN THE UNITED STATES

In the United States, law is derived largely from English common law; but the problem of codification has been complicated by the existence of a multiplicity of sovereign governmental jurisdictions, and two general sets of codes have developed—federal and state codes—with divergences on many points. However, largely as a result of the pioneering work of the American jurist David Dudley Field, considerably more than half the states have adopted uniform codes of civil and criminal procedure, and all of them have enacted uniform legislation with respect to negotiable credit instruments.

VI INTERNATIONAL CODES

Attempts at defining a code of international public and private law have not been successful. The League of Nations failed in its attempt to do so. The United Nations has established a commission to study the possible codification of various aspects of international law.

Reviewed By:
Simon Levene

Courts in the United States

I INTRODUCTION

Courts in the United States, judicial organs of government, comprising two principal systems: the federal courts, referred to as United States courts, and the state courts. The federal courts were provided for in the US Constitution on the grounds that the judicial power of the federal government could not be entrusted to the states, many of which were jealous of the powers necessary for a strong national government. Thus, Article III, Section 1, of the Constitution provides: “the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish”. In accordance with these provisions, Congress passed the Judiciary Act of 1789, organizing the US Supreme Court and establishing a system of federal courts of inferior jurisdiction.

The states were left free to establish their own judicial systems subject to the exclusive jurisdiction of the federal courts and to Article VI of the Constitution declaring the judges of the state courts to be bound by the Constitution and the laws and treaties of the United States.

II FEDERAL COURTS

The jurisdiction of the federal courts is defined in Article III, Section 2, of the Constitution, as extending in law and equity to all cases arising under the Constitution and federal legislation; to controversies to which the United States shall be a party, including those arising from treaties with other governments; to admiralty and maritime cases; to controversies between states; to controversies between a state, or its citizens, and foreign governments or their subjects; and to controversies between the citizens of one state and citizens of another state. The federal courts were also originally invested with jurisdiction over controversies between citizens of one state and the government of another state; the 11th Amendment (ratified February 7, 1795), however, removed from federal jurisdiction those cases in which the citizens of one state were plaintiffs and the government of another state was the defendant. However, the amendment did not disturb the jurisdiction of the federal courts in cases in which a state government is a plaintiff and a citizen of another state, the defendant. Federal courts have exclusive jurisdiction in patent and copyright cases; and by the congressional enactment in 1898, federal courts were vested with original jurisdiction in bankruptcy cases.

The courts established under the powers granted by Article III, Sections 1 and 2, of the Constitution are known as constitutional courts. Judges of constitutional courts are appointed for life by the president with the approval of the Senate. These courts are the district courts, tribunals of general original jurisdiction; the courts of appeals (before 1948, circuit courts of appeals), exercising appellate jurisdiction over the district courts; and the Supreme Court.

Other federal courts, established by Congress under powers held to be implied in other articles of the Constitution, are called legislative courts. These are the Claims Court, the Court of International Trade, the Tax Court, and the territorial courts established in the federally administered territories of the United States. The special jurisdictions of these courts are defined by the US Congress. Except in the case of the territorial courts, which are courts of general jurisdiction, the special jurisdictions of these courts are suggested by their titles.

III STATE COURTS

Each state in the United States has an independent system of courts operating under the constitution and laws of the state. Broadly speaking, the state courts are based on the English judicial system as it existed in colonial times, but as modified by statutory enactments; the character and names of the courts differ from state to state. The state courts as a whole have general jurisdiction, except in cases in which exclusive jurisdiction has been vested in the federal courts. In cases involving the federal Constitution or federal laws or treaties, the state courts are governed by the decisions of the Supreme Court and their decisions are subject to review by that Court.

Cases involving the federal Constitution, federal laws, or treaties may be brought to either the state courts or the federal courts. Ordinary civil cases not involving any of those elements can be brought only to the state courts, except in cases of diversity of citizenship between the parties, in which event the case may be brought to a federal court. By the act of Congress, however, cases involving federal questions or diversity of citizenship may be brought to the federal courts only when the controversy involves US$10,000 or more; all such cases involving a smaller amount must be brought to the state courts exclusively. In accordance with a congressional enactment, a case brought to a state court that could have been brought to a federal court may be removed to the federal court at the option of the defendant.

(Bearing in mind that any statement about state courts purporting to give a typical description of them is subject to numerous exceptions, the following information may be taken as general comprehensive statements of their jurisdictions and organization.)

County courts of general original jurisdiction exercise both law and equity jurisdictions in most of the states; a few states maintain the system of separate courts of law and equity inherited from the English judicial system. Most states also maintain separate criminal and civil courts of original jurisdiction. In some states, the same courts of original jurisdiction deal with both civil and criminal cases; these courts usually have two levels, one handling misdemeanours and civil claims under US$5,000, the other handling felonies and civil claims over US$5,000. There are numerous exceptions and local variations: in North Dakota, for example, justices of the peace have civil jurisdiction where the money at stake does not exceed US$200.

Between the lower courts and the supreme appellate courts, in a number of states, are intermediate appellate courts which, like the federal courts of appeals, provide speedier justice for litigants by disposing of a large number of cases that otherwise would be added to the overcrowded schedules of the higher courts.

Courts of last resort, the highest appellate tribunals of the states in criminal and civil cases and in law and equity, are generally called supreme courts. In New York State, however, the Supreme Court is a trial court; the highest appellate court of New York, as well as of Maryland, is called the Court of Appeals. In most courts of appeal, an appeal only lies against rulings of law, not findings of fact.

The state court systems also include a number of minor courts with limited jurisdiction. These courts dispose of minor offences and relatively small civil actions. Included in this classification are police and municipal courts in cities and larger towns, and the courts presided over by justices of the peace in rural areas.

Reviewed By:
Simon Levene

International Law, Private

I INTRODUCTION

International Law, Private, that part of the law of a country that applies to cases involving the foreign law.

II CONCERNS

Private international law is concerned with various matters that are handled by a court of law in the following order. First, the court must decide whether or not it has jurisdiction in a case involving foreign elements—for example, a case that involves a contract made or fulfilled abroad or a case in which judicial determination has already been made in another country. Secondly, once the court has assumed jurisdiction, it must decide whether to apply the laws of its own country or that of the foreign country involved. Thirdly, the court must determine the circumstances under which decisions of a foreign court are to be upheld. Lastly, the court must determine the validity of contracts, testaments, marriages, divorces, adoptions, and acts other than court decisions made in foreign countries in accord with the laws of those countries.

These determinations are made by a court under statutes enacted by the national legislature of the country in which it is situated. Such statutes comprise an integral part of the law of that country. To the extent, however, that these statutes provide for the enforcement of the laws of foreign countries, they are part of international law—hence the designation “private international law”. To the extent that they relate to the determination of conflicting laws based on diverse national origins, they are said to concern the conflict of law.

Generally, the courts can act against any person in the jurisdiction when a case is started. A case may be halted, however, if it can be shown that it is wrong for it to be heard in the jurisdiction. Some countries other than England and Wales (including Scotland and the United States) have a wider rule, whereby it is necessary to show only that hearing the case elsewhere is more appropiate. The Hague Convention in Europe has established a series of rules that the court must apply when deciding this issue between the courts of signatory countries to the convention.

A foreign judgment can be enforced as though it were a judgment of the domestic court by registering it in the domestic court. Exceptionally, registration may be set aside if fraud can be proved as a basis for the judgment, or strong reasons of public policy call for the judgment to be rejected. Many countries took that position, for example, when dealing with judgments from Nazi Germany before the war.

III RECOGNITION OF JUDGMENTS

In general international practice, whenever the recognition of foreign laws or of foreign legal acts is specifically prohibited by statute or would result in unconscionable injury or contravene the public policy of a nation, the courts of that country do not grant such recognition.

The judgments of duly constituted courts are usually recognized and enforced in a foreign country, subject only to scrutiny as to irregularity, fraud, or lack of jurisdiction.

Reviewed By:
Simon Levene

International Law

I INTRODUCTION

International Law, principles and rules of conduct that nations regard as binding and, therefore, are expected to and usually do observe in their relations with one another. International law is the law of the international community.

II ANCIENT HISTORY

The need for some principles and rules of conduct between independent states arises whenever such states enter into mutual relations. Rules governing the treatment of foreign traders, travelers, and ambassadors, as well as the conclusion and observance of treaties, developed early in human history. The oldest-known treaty, preserved in an inscription on a stone monument, is a peace treaty between two Sumerian city-states, dating from about 3100 bc. A considerable number of treaties concluded by the empires of the ancient Middle East during the 2nd-millennium bc show rudimentary notions of international law. In later antiquity, the Jews, Greeks, and Romans developed tenets of international law. Jewish law as set forth in the Book of Deuteronomy contains prescriptions for the mitigation of warfare, notably rules against the killing of women and children. The Greek city-states created an elaborate treaty system governing a multitude of aspects of relations among themselves. The conduct of the Olympian Games and the protection of religious sanctuaries, such as the Temple of Delphi, were among the subjects of some of these inter-Greek treaties.

Even more than other ancient societies, the Romans made significant contributions to the evolution of international law. They developed the idea of a jus gentium, a body of laws designed to govern the treatment of aliens subject to Roman rule, and the relations between Roman citizens and aliens. They were the first people to recognize in principle the duty of a nation to refrain from engaging in warfare without a just cause and to originate the idea of a just war. Subsequent theorists, including St Augustine of Hippo and St Thomas Aquinas, considered the concept of a just war and what were later thought to be its constituent principles: jus ad bellum (justice in going to war) and jus in bello (justice in war).

III THE MODERN SYSTEM

Modern international law emerged as a result of the acceptance of the idea of the sovereign state and was stimulated by the interest in Roman law in the 16th century. Building largely on the work of previous legal writers, especially Spanish precursors, the Dutch jurist Hugo Grotius, sometimes called the father of modern international law, published his celebrated treatise De Jure Belli Ac Pacis (On the Laws of War and Peace) in 1625. (He had previously published his pioneering tract on the freedom of the sea, Mare Liberum, in 1609.) Grotius based his system on the laws of nature and propounded the view that the already-existing customs governing the relation between nations had the force of law and were binding unless contrary to natural justice. His influence on the conduct of international affairs and the settlement of wars was great. His ideas became the cornerstone of the international system as established by the treaty of the Peace of Westphalia (1648), which ended the Thirty Years’ War.

Other scholars and statesmen further developed the basic rules of international law, among them the Dutch jurist Cornelis van Bynkershoek and the Swiss diplomat Emmerich de Vattel, whose Le Droit des Gens (1758; Law of Nations) exercised great influence on the framers of the Constitution of the United States. By the end of the second half of the 19th century, literature on the subject had reached vast proportions. The Institute of International Law, a private organization for the study of international law composed of outstanding scholars from various countries, was established in 1873. One of its founders was the American David Dudley Field, who in the same year wrote Outlines of an International Code.

International law stems from three main sources: treaties and international conventions, customs, and customary usage, and the generally accepted principles of law and equity. Judicial decisions rendered by international tribunals and domestic courts are important elements of the law-making process of the international community. Nowadays, United Nations (UN) resolutions may also have a great impact on the growth of the so-called customary international law that is synonymous with general principles of international law.

The present system of international law is based on the sovereign state concept. It is within the discretion of each state, therefore, to participate in the negotiation of, or to sign or ratify, any international treaty. Likewise, each member state of an international agency such as the UN is free to ratify any convention adopted by that agency.

Treaties and conventions were at first restricted to their effects to those countries that ratified them, and as such were particular, not general. However, regulations and procedures contained in treaties and conventions have often developed into general customary usage, that is, have come to be considered binding even in those states that did not sign and ratify them. Customs and customary usages become part of international law because of continued acceptance by the great majority of nations, even if they are not embodied in a written treaty instrument. “Generally accepted principles of law and justice” fall into the same category and are, in fact, often difficult to distinguish from customs.

By the late 18th century there was a growing movement towards the codification of international law. British philosopher Jeremy Bentham campaigned for an international code based on his principle of utility to the relations between nations in his Principles of International Law (1786-1789). This he believed would provide a framework for everlasting peace. Indeed, since the beginning of the 19th century, international conferences have played an important part in the development of the international system and the law. Noteworthy in that respect was the Congress of Vienna that, through its Final Act of 1815, reorganized Europe after the defeat of Napoleon and also contributed to the body of international law. For example, it established rules for diplomatic procedure and the treatment of diplomatic envoys. On the urging of the United Kingdom, it included a general condemnation of the slave trade. Another important step in the development of international law was the Conference of Paris (1856), which was convened to terminate the Crimean War but at the same time adopted the Declaration of Maritime Law that abolished privateering and letters of marque, modernized the rights of neutrals during maritime war, and required blockades to be effective. The Declaration of Paris also initiated the practice of providing for the subsequent accession by nations other than the original signatories. In 1864 a conference convened in Geneva at the invitation of the Swiss Federal Council approved a convention for the protection of wounded soldiers in a land war; many nations subsequently acceded to this convention.

The avoidance or mitigation of the rigours of war continued to be the subject of other multilateral treaties. The peace conferences held in 1899 and 1907 in The Hague, the Netherlands, resulted in a number of conventions of that type. The 1899 conference adopted a Convention for the Pacific Settlement of International Disputes, which created the Permanent Court of Arbitration. Although it was not a veritable court with a fixed bench of judges, it served as an important instrument of arbitration.

At the end of World War I the League of Nations was established by the covenant signed in 1919 as part of the Treaty of Versailles. In accordance with provisions in this covenant, the Permanent Court of International Justice was established in 1921. The League of Nations was created as a permanent organization of independent states for the purpose of maintaining peace and preventing war. During its existence, 63 countries were members of the League at one time or another. The Union of Soviet Socialist Republics joined in 1934, but Germany and Japan withdrew in 1933. The United States never became a member of the organization, which was powerless to forestall World War II. Equally unsuccessful in preventing hostilities was the Pact of Paris for the Renunciation of War in 1928—the so-called Kellogg-Briand Pact—although it was ratified by more than 60 nations, including Germany and Japan. After the termination of World War II in 1945, the UN Charter created a new organization with an elaborate machinery for solving disputes among nations and for the further development of international law.

Normally, every nation is expected to obey international law. Some nations, for example, the United Kingdom, have incorporated into their municipal law the provision that international law shall be made part of the law of the land. The US Constitution empowers Congress “to define and punish … Offenses against the Law of Nations” (Article I, Section 8). In cases involving international law, American courts tend to interpret American law in conformity with international law; such an attitude has consistently been urged by the US Supreme Court.

If each nation were free to declare unilaterally that it is no longer bound by international law, the result would be anarchy. A test was provided in the conduct of Germany under Nazi rule. The Nuremberg tribunals held that German government regulations that ordered, for example, the killing of prisoners of war in contravention of the generally valid rules of warfare, were null and void and that the people responsible for issuing and executing such orders were criminally responsible for violations of international law.

IV IMPACT OF THE UN ON INTERNATIONAL LAW

The UN began its life with a membership of 50 nations. By 2006, because of the growth of newly independent nations, that number had reached 191. The aims and purposes of the organization encompass the maintenance of peace and security and the suppression of acts of aggression. The Charter also expressly includes among its objectives the maintenance of respect for the obligations arising from treaties and other sources of international law. For that reason, the Charter established the International Court of Justice as one of the principal UN organs and specifically charged the General Assembly with the progressive development and codification of international law. To carry out this task, the General Assembly has created two subsidiary organs: the International Law Commission and the Commission on International Trade Law. The International Law Commission, on assignment by the General Assembly, has prepared drafts of treaties codifying and modernizing a number of important subjects of international law, such as various aspects of the law of the sea (1958), diplomatic relations, consular relations, law of treaties between nations, succession of states in respect to treaties, law of treaties between nations and international organizations, and immunity of states from the jurisdiction of other states. Upon acceptance by the General Assembly, these drafts are submitted to international conferences called together by the UN for the negotiation of the respective conventions.

In some instances, the UN has summoned conferences to negotiate treaties without prior proposal by the International Law Commission. The most important example was the third UN Conference on the Law of the Sea, which terminated its work in 1982 with the draft of a convention for a comprehensive regime governing all aspects of the peaceful use of the oceans. Another example is the text of the convention governing the activities of nations on the Moon and other celestial bodies, which was adopted by the General Assembly in 1979 and came into effect in 1984.

Guidelines for the use of force in international law are provided in the United Nations Charter, the aim of which is to preserve peace. Two fundamental principles are specified in Article 2 of the Charter: that “all members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” (Article 2(3)) and “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations” (Article 2(4)). Under the Charter, the use of force is permitted in only two situations: self-defence (a right under customary international law, preserved by Article 51) or with a UN Security Council resolution (Article 42).

In recent years, particularly in light of the War on Iraq, there has been much academic and political debate as to whether a customary doctrine of humanitarian intervention exists in international law. Indeed some believe the creation of the concept of humanitarian intervention is already implicit in the UN Charter. Advocates of humanitarian intervention justify it primarily as a moral imperative. However, the concept or doctrine remains extremely contentious as it potentially runs contrary to other peremptory principles of international law, in particular, the concepts of state sovereignty and territorial integrity.

Since the UN Charter bans the use of force against the territorial integrity or political independence of any state, the UN has refrained from addressing aspects of the law on war and neutrality. Nevertheless, the four Geneva conventions of 1949—the so-called Red Cross Conventions—formulated agreements relative to the improvement of the condition of wounded and sick members of the armed forces in the field and at sea, the treatment of prisoners of war, and the protection of civilians in wartime, thereby instilling new life into the humanitarian principles of international law.

International law regulates intercourse among nations in peacetime and provides methods for the settlement of disputes by means other than war. Apart from procedures made available by the UN, these methods include direct negotiation between disputants under the established rules of diplomacy, the rendering of good offices by a disinterested third party, and recourse to the International Court of Justice (ICJ). All UN member states are subject to the ICJ statute, according to Article 93 of the UN Charter. Primarily, the ICJ was designed to settle legal disputes submitted by states and to advise on legal questions referred by certain international organs and agencies.

Other peacetime aspects of international law involve the treatment of foreigners and of foreign investments; the acquisition and loss of citizenship; the status of stateless people; the extradition of fugitives; and the privileges and duties of diplomatic personnel.

V HUMAN RIGHTS

Since World War II international law has become increasingly concerned with the protection of human rights. It has provided improved procedures for that purpose within the UN. This new emphasis has also been manifested in the adoption by the UN of the Universal Declaration of Human Rights and the conclusion of the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, the signing of the International Convention on the Elimination of All Forms of Racial Discrimination in 1966, and the adoption in 1975 of the Declaration on the Protection of All Persons from Being Subjected to Torture or Other Cruel, Inhumane, or Degrading Treatment or Punishment. These measures have been supplemented by regional conventions, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and the American Convention on Human Rights (1969). In 1945 an international convention for the prosecution of the major war criminals of the European Axis Powers provided for the punishment of crimes against humanity and established a special International Military Tribunal for that purpose.

The ethnically motivated massacres and human rights atrocities during civil wars such as those in the former Yugoslavia and Rwanda have impelled the UN to establish international courts to deal with violations of human rights in times of war; for example, the International Criminal Tribunal for Rwanda (ICTR) was set up in 1994. The tribunal’s conviction of Jean-Paul Akayesu, the former mayor of the central Rwandan community of Taba, on nine counts of genocide and crimes against humanity on September 2, 1998, set an important precedent for other international courts. In a second ruling, the ICTR became the first international court to define the crime of rape, calling it a “physical invasion of a sexual nature, committed on a person under circumstances which are coercive”. This was necessary, the court said, because “to date, there is no commonly accepted definition of [rape] in international law.” The court also ruled that rape and sexual violence may constitute genocide if committed with the intent to destroy a specific national, ethnic, racial, or religious group. See also International Criminal Tribunal for the Former Yugoslavia.

These unscheduled tribunals highlighted the need for a permanent international tribunal. On July 17, 1998, the Rome Statute of the International Criminal Court was adopted (and came into force in July 2002) by the 120 States who took part in the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court.

Common Law

I INTRODUCTION

Common Law, a term used to refer to the main body of English unwritten law that evolved from the 12th century onward. The name comes from the idea that English medieval law, as administered by the courts of the realm, reflected the common customs of the kingdom. This system of law prevails in England and Wales and in those countries, such as Canada and the United States, that were originally colonized by English settlers.

II THE LEGAL SYSTEM

The common law is based on the principle of deciding cases by reference to previous judicial decisions, rather than to written statutes drafted by legislative bodies. Common law can be contrasted to the civil law system, based on ancient Roman law, found in continental Europe and elsewhere. Whereas civil law judges resolve disputes by referring to statutory principles arrived at in advance, common law judges focus more intently on the facts of the particular case to arrive at a fair and equitable result for the litigants.

As the number of judicial decisions accumulates on a particular kind of dispute, general rules or precedents emerge and become guidelines for judges deciding similar cases in the future. Subsequent cases, however, may reveal new and different facts and considerations, such as changing social or technological conditions. A common law judge is then free to depart from precedent and establish a new rule of decision, which sets a new precedent as it is accepted and used by different judges in other cases. In this manner, common law retains a dynamic for change. As the United States Supreme Court Justice Oliver Wendell Holmes wrote in his book The Common Law (1881): “The life of the [common] law has not been logic; it has been experiencing.”

In all common law systems, a pyramidal structure of courts exists to define and refine the law. At the base of the pyramid is the trial court. In criminal trials a judge sits with a jury; the judge decides and instructs the jury on the law, and the jury decides on factual issues. Except for cases of defamation, malicious prosecution, or false imprisonment, which are decided by a jury, in civil actions, a judge sitting alone decides issues of both fact and law.

Above the trial courts, layers of appellate (appeal) courts, composed entirely of judges, exist to adjudicate disputes. These disputes centre on whether or not the trial judge applied the correct principles of law and drew the right conclusions from the factual evidence in civil cases. The interpretations of law made by appellate courts from the precedents that govern future cases. Furthermore, the importance of a precedent for any given court depends on that court’s position in the pyramidal structure; for example, a precedent set by an appellate court has greater force in trial courts than in other appellate courts.

III REPORTING THE UNWRITTEN LAW

Common law has been known as unwritten law because it is not collected in a single source. Reports of the judicial decisions from which the common law was derived were only occasionally circulated from the 12th to the 16th century. Starting in the 17th century, formal reports of some decisions were published by private parties. These early reports were supplemented by infrequent scholarly treatises summarizing large segments of the case law, such as those of Sir Edward Coke (published in 1628) and Sir William Blackstone (published 1765-1769). As reporting improved, the influence of these treatise writers diminished. In the 19th century, the courts themselves took responsibility for overseeing the publication of judgments in both England and the United States. It is primarily the decisions of appellate rather than trial courts that are published.

IV COMMON LAW IN ENGLAND

Common law is distinguished from other forms of judge-made law from parallel court systems. In medieval times, for example, common law courts were secular, as contrasted with the ecclesiastical courts of the Roman Catholic Church. Common law courts did not deal with merchant law, which was administered in mercantile courts, or with maritime law, administered in the admiralty court.

The most important parallel system was equity jurisdiction. Equity originated in early English law when subjects petitioned the monarch for justice. Such petitions were delegated to Lord Chancellor and later to a tribunal called the Court of Chancery. Equity grew into a special body of rules over and above those administered in other royal courts of law. At first, common law courts were more bound by precedent than were courts of equity, which provided remedies based on notions of fairness to litigants who were denied relief on technical grounds under common law.

By the end of the medieval period, common law and equity constituted the vast bulk of all English law. As common law became less formal and as equity accumulated its own set of precedents, these two forms of judge-made law grew closer together. Britain abolished the distinction between common law and equity in the Judicature Act of 1873. The ultimate effect of the growth and absorption of equity jurisdiction was to gradually expand the range of disputes that could be adjudicated in formal courts.

During and after the Industrial Revolution, in response to the growing complexity of the law and the need for greater clarity and accessibility, the British parliament asserted itself as the principal source of new law, modifying and adding to the body of judge-made law by statute. In modern times, the statutes of Parliament have come to encompass most legal relationships. The common law, however, remains in force to help interpret statutes, many of which are primarily restatements of common law rules and principles.

V COMMON LAW IN THE UNITED STATES

Most of the English common law, as it existed at the time of the American War of Independence, became the foundation of a distinctly American system of law. Common law has varied from state to state, but only one state, Louisiana, differs significantly from the rest, basing its system on the French civil law model.

See also Administrative Law; International Law.

Administrative Law

I INTRODUCTION

Administrative Law, branch of law concerned with the regulation of governmental power. It is intrinsically related to the constitutional framework and political theory from which it has developed. Principal objectives of administrative law include the accountability of governmental power and the resolution of grievances of those affected by administrative decision-making. While some commentators would stress the issue of control of administrative action, others are interested in the way the administrative legal system can improve the effectiveness of administrative action. Administrative law is concerned with all relevant institutional arrangements that regulate public decision-making. The role of some of the most important of these institutions is considered below.

II THE COURTS

The development of administrative law has been dominated by the doctrine of ultra vires. All public bodies derive their powers from legislative authority: they can only exercise power within the legal framework that granted it. An attempt to exercise a power outside that framework, or that has not been granted by statute, is ultra vires. It follows that the role of the court is supervisory only: it is not concerned with the correctness or merits of a decision that is made by a public authority. The key to the ultra vires theory is the statutory interpretation by the courts of powers delegated by Parliament. There has been increasing criticism of the ultra vires theory as an explanation of judicial decision-making in this area. Nevertheless, it is the theory that continues to dominate judicial explanations of decisions in this context.

The courts have the power to review the decisions of public bodies. The grounds for judicial review are classified under three broad headings: illegality, procedural impropriety, and irrationality. Illegality covers cases where a body has made an error of law. Procedural impropriety arises where a body acts in breach of natural justice—for example, because the decision-maker was biased, or because one party did not have an adequate hearing. Irrationality is intended as a safety net, allowing challenge where a body is considered to have acted perversely or in a way that no sensible person would have in making decisions.

The appropriate procedure to challenge a public decision is an application for judicial review. Judicial review has a number of important safeguards for public authorities. An applicant must secure leave from a judge and must adhere to strict time limits, usually within three months from the date a decision was made. The applicant must be considered to have a sufficient interest in bringing the proceedings, although the courts have shown considerable flexibility in the interpretation of this requirement.

III TRIBUNALS

In an increasing number of areas, tribunals have been established in preference to courts. Examples include adjudication on social security benefits, immigration, employment, and discrimination. Procedurally, tribunals have certain advantages over courts. They are usually more accessible, cheaper, and more informal than courts. Despite these advantages, there are some areas of concern; for example, legal aid is not available before a tribunal, and research shows that individuals who appear before a tribunal without representation are less likely to succeed.

IV PUBLIC INQUIRIES

Public inquiries provide an institutional framework for the participation of relevant interests in public decision-making. A public local inquiry is held before an inspector appointed by the minister. The inspector must give reasons for a decision and must report to the relevant minister. There is no financial provision to support public participation at public inquiries, which are often lengthy and costly. The government is not obliged to act on any recommendations that the inspector makes.

V THE OMBUDSMAN

The Parliamentary Commissioner for Administration (PCA) is the ombudsman in Britain, set up in 1967 to investigate allegations of maladministration by government departments. Complaints must be made by an individual to a Member of Parliament (MP) who acts as a filter to the PCA. The PCA can investigate maladministration, which has been interpreted broadly by the PCA and includes delay, bias, and perversity.

The law on this topic is broadly similar in England and Wales, and Scotland. Ministers in the Scottish Parliament have the power to order public inquiries.


Contributed By:
Jane Hanna

Reviewed By:
Simon Levene

Civil Law

I INTRODUCTION

Civil Law, term applied to the body of private law used in those countries in which the legal system is based on ancient Roman law as modified by medieval and modern influences. Civil law is used in most nations in Europe and Latin America, as well as in some countries in Asia and Africa. The law of the United States, Canada, and a number of other nations is based on English common law, which differs from civil law in origin and other important respects.

In the United Kingdom, the term “civil law” is used to distinguish that part of the legal system which deals with disputes between individuals (such as property disputes, divorce, or personal injury claims) from the criminal legal system.

II HISTORICAL DEVELOPMENT

The civil law originated in ancient Rome. One of the principal characteristics of Roman civilization was the development of strong legal institutions. The principles and rules of Roman law were based partly on legislation and partly on the utterances of great legal scholars who were routinely asked for their opinions by judicial officers confronting difficult legal issues in the determination of lawsuits. In the 6th century a commission appointed by the emperor Justinian collected and consolidated all the sources of law, including the opinions rendered by the great legal scholars during previous centuries. The result was the Corpus Juris Civilis (Body of Civil Law), also called the Justinian Code, a comprehensive code embodying the accumulated wisdom and experience of many generations of Roman jurists.

Justinian’s realm was essentially limited to the eastern half of the Roman Empire; the western half had already been overrun by Germanic invaders. Thus, Justinian’s Corpus Juris had no immediate effect in western Europe, where the period from the 5th to the 10th century was one of cultural decline. In the course of the intellectual reawakening that occurred in the second half of the 11th century, the Corpus Juris was rediscovered in Italy. About the same time, the study of academic law was instituted at the newly founded University of Bologna, where the law professors based their teaching on the Corpus Juris. Other European universities followed suit, and the Justinian Code became an important element in the development of Continental law until relatively modern times. Other elements were canon law and the customs of merchants. Together they formed a body of written transnational law (known as jus commune) preserved by academic legal scholarship, with which lawyers and judges throughout continental Europe were familiar. Eventually, local statutes and numerous local customs, often of Germanic origin, were also committed to writing. In the frequent cases in which these local statutes and local customs did not furnish an answer, however, courts and lawyers tended to be guided by the transnational jus commune.

During the 17th and 18th centuries the authority of the Corpus Juris began to decline as its rules were re-examined in the light of reason. The stage was then set for the systematic and comprehensive codification of modern civil law. The most influential, although not the first, codification effort was the enactment, during the Napoleonic period, of the five basic codes of France: the Civil Code (Code Napoléon of 1804), the Code of Civil Procedure (1807), the Commercial Code (1808), the Penal Code (1811), and the Code of Criminal Procedure (1811). In the course of the 19th century, most civil-law countries similarly codified the bulk of their legal statutes. The German Civil Code (effective in 1900) and the Swiss Civil Code (1907) both exerted influence the world over.

Codification of the civil law had several major consequences. After their enactment, the codes constituted comprehensive and authoritative legal texts that superseded all earlier authorities in the teaching of law as well as in legal practice. Within each nation state, the codes brought about a strong measure of national unification of the law. Such unification, along with systematization and reform, enhanced the certainty and predictability of the law. In their substance, the codes differed from one nation to another, thus marking a shift from the transnational jus commune to separate national legal systems. In recent years, however, vigorous efforts have begun, in the nations of the European Union and elsewhere, to replace certain isolated national laws with international legal practices.

III GEOGRAPHICAL EXPANSION

From its origins in continental Europe, the civil law gradually spread to all of the areas in Africa, Asia, and Latin America that were colonies of France, the Netherlands, Belgium, Spain, or Portugal. When they gained independence, most of the former colonies continued the civil-law orientation of their legal systems. Other nations that voluntarily adopted civil-law systems include Japan, South Korea, Thailand, and Turkey.

In a number of countries, moreover, the civil law constitutes an important component of a mixed legal system. For example, in Scotland, South Africa, and Sri Lanka the legal system combines civil- and common-law elements. In North America the same phenomenon can be observed in the state of Louisiana and in the province of Quebec. The legal systems of many North African and Middle Eastern nations are strongly influenced by the French civil-law codes, even though in some areas of law—especially those relating to the family and to family property—these countries tend to follow Islamic tradition (see Shari’ah Law).

IV COMPARISON OF CIVIL LAW AND COMMON LAW

The codes of civil law and court procedures vary widely, but in general they are distinguished from common law in several significant ways. In contrast to the uninterrupted evolution of common law, the development of civil law was marked by a major break with the past, which occurred as the result of the 19th-century codification efforts. In civil law, judicial interpretations are based primarily on this system of codified written law, rather than on the rule of precedent that is emphasized in the common law. The law of evidence, so important in common-law countries, has no counterpart in the civil law.

Much more systematically than the common law, the civil law separates public and private law. In most civil-law nations, public-law disputes are determined by a hierarchy of administrative courts, which are separate from the ordinary courts that have jurisdiction over private-law disputes and criminal cases. In common-law countries, private- and public-law disputes are usually determined by the same courts.

Trial by jury, a major feature of the common-law system, is not often used in the civil law. In the United Kingdom a jury is never employed in the determination of civil disputes. In some civil-law countries, laypeople participate in the adjudication of criminal cases; generally, however, these laypeople do not sit as jurors, but act as judges who, together with professional judges, decide on the innocence or guilt of the accused and on the sentence to be imposed.

Other differences are also apparent. The approaches of the two types of legal systems differ, for example, in matters of contractual law and freedom of testation. The civil-law systems go further in implementing the principle of freedom of contract, by specifically upholding almost all contractual promises and by enforcing penalty clauses. Freedom of testation, on the other hand, is more restricted in civil-law nations, where the testator’s children—and not only a surviving spouse—receive a certain portion of a parent’s estate regardless of the provisions of the will.

The differences between civil law and common law, however, should not be overstated. Despite divergences in methods and terminology, a basic similarity is found in the ultimate results reached by both systems. The trend is towards a closer relationship between the approaches of the common law and the civil law.

Reviewed By:
Simon Levene

Law Definition

I INTRODUCTION

Law, body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that 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 backed 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 mores, 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 and private planning. Laws limiting the powers of government 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 inhibit social discrimination and to improve the quality of individual life in matters of health, education, and welfare.

Some experts believe that the popular view of law overemphasizes its formal, coercive aspects. They point out that if a custom or norm is assured of judicial backing, it is, for practical purposes, law. On the other hand, a statute that is neither obeyed nor enforced is an empty law. Social attitudes towards the formal law are a significant part of the law in process. The role of law in China and Japan, for example, is somewhat different from its role in Western nations. Respect for the processes of law is low, at least outside matters of business and industry, and tradition looms much larger in everyday life. Resort to legal resolution of a dispute is truly a last resort, with conciliation being the mechanism that is preferred for social control.

Law is not completely a matter of human enactment; it also includes natural law. The best-known version of this view, that God’s law is supreme, has had considerable influence in many 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 version of natural law, which is closely linked to the religion of Islam.

II DEVELOPMENT OF LAW

Law develops as society evolves. Historically, the simplest societies were tribal. The members of the tribe were bonded together initially by kinship and worship of the same gods. Even in the absence of courts and legislature there was law—a blend of custom, morality, religion, and magic. The visible authority was the ruler, or chief; the ultimate authorities were believed to be the gods whose will was revealed in the forces of nature and in the revelations of the tribal head or the priests. Wrongs against the tribe, such as sacrilege or breach of tribal custom, were met with group sanctions including ridicule and hostility, and, the tribe members thought, with the wrath of the gods. The gods were appeased in ritualistic ceremonies ending perhaps in sacrifice or expulsion of the wrongdoer. Wrongs against individuals, such as murder, theft, adultery, or failure to repay a debt, were avenged by the family of the victim, often in actions against the family of the wrongdoer. Revenge of this kind was based on tribal custom, a major component of early law.

Tribal society gradually evolved into territorial confederations. Governmental structures emerged, and modern law began to take shape. The most significant historical example is Roman law, which influenced most of the legal systems of the world. In the 8th century bc the law of Rome was still largely a blend of custom and interpretation by magistrates of the will of the gods. The magistrates later lost their legitimacy because of gross discrimination against the lower (plebeian) class. The threat of revolution led to one of the most significant developments in the history of law: the Twelve Tables of Rome, which were engraved on bronze tablets in the 5th century bc. They were largely a declaration of existing customs concerning such matters as property, payment of debts, and appropriate compensation or other remedies for damage to people. The Twelve Tables serve as a historical basis for the widespread modern belief that fairness in law demands that it be in written form. These tables and their Roman successors, including the Justinian Code, led to civil law codes that provide the main source of law in much of modern Europe, South America, and elsewhere.

The common law systems of England, and later of the United States, developed in a different manner. Before the Norman Conquest (1066), England was a loose confederation of societies, the laws of which were largely tribal and local. The Anglo-Norman rulers created a system of centralized courts that operated under a single set of laws that superseded the rules laid down by earlier societies. This legal system, known as the common law of England, began with common customs, but over time it involved the courts in lawmaking that was responsive to changes in society.

Modern legislatures and administrative agencies produce a much greater quantity of formal law, but the judiciary remains very important because of the continued vitality of the common law approach even in matters of constitutional and statutory interpretations. Increasingly in civil law countries, the subtleties of judicial interpretation and the weight of judicial precedents are recognized as involving the courts in significant aspects of lawmaking.

III SUBSTANTIVE AND PROCEDURAL LAW

In broad terms, substantive law defines the rights and duties of people; procedural law defines and deals with procedures for enforcing those rights and duties. Substantive law determines a wide variety of matters—for example, what is required to form a contract, what the difference is between larceny and robbery, when one is entitled to compensation for an injury, and so on. The rules of procedure and jurisdiction determine the court or administrative agency that may handle a claim or dispute; the form of the trial, hearing, or appeal; the time limits involved; and so on. Related rules also cover the kinds of evidence that may be presented. Such rules are more limiting in trial courts than in administrative agencies. The fine points of procedural law are considerable, but they are generally thought to be indispensable to whatever efficiency and fairness law may have.

IV PUBLIC LAW

Public law concerns the relationships both within a government and between governments and individuals. Because the Roman codes were almost entirely limited to the private area, public law is usually not codified, that is, arranged systematically into a set code. In civil law countries, separate administrative courts adjudicate claims and disputes between the various branches of government and citizens, and many lawyers specialize in public law. In France, Germany, and Italy, still other courts handle constitutional issues.

Public law is not quite so clearly demarcated in the United Kingdom. Under the common law approach the same courts handle public and private litigation. Because the United Kingdom has no written constitution, basic principles pertaining to government powers and limits and to fundamental individual rights are found in acts of Parliament, judicial opinions, and tradition. The High Court has the power to declare an act of Parliament to be in breach of the Human Rights Act 1998.

Laws concerning taxation and the regulation of business are in the public area, as is criminal law, which involves the exercise of governmental power by way of enforcement and punishment. Historically, criminal law in the United Kingdom included crimes defined by the courts. The public law nature of the area is further emphasized by other constitutional protections such as the presumption of innocence, protection against self-incrimination, and the rule against double jeopardy (whereby a defendant cannot be tried twice for the same crime—although retrials are now permissible in the UK for the most serious offences). Criminal law not only promotes security and order but also reinforces moral norms. Debate has been continuous regarding the legitimacy of government intervention in areas where moral attitudes are in significant conflict, such as in matters of sexual practices, pornography, birth control, and euthanasia.

An important area of public law concerns the welfare of children: the courts have wide powers to intervene in family life to protect minors.

V PRIVATE LAW

Private law involves the various relationships that people have with one another and the rules that determine their legal rights and duties among themselves. The area is concerned with rules and principles pertaining to private ownership and use of property, contracts between individuals, family relationships, and redress by way of compensation for harm inflicted on one person by another. Historically, government involvement was usually minimal. Private law has also operated to provide general guidelines and security in private arrangements and interactions in ways that are complementary to morality and custom but that are not necessarily enforceable in a court of law, such as noncontractual promises and agreements within an association of private individuals.

The relative significance of purely private law has decreased in modern times. Public law dominates in government-controlled societies; democratic societies increasingly have a mix of public and private law. The private sphere includes individuals and a vast array of groups, associations, organizations, and special legal entities such as corporations and limited companies. They compete with one another and with government for control of resources, wealth, power, and the communication of ideas and values. Special fields of law, such as labour law, facilitate and control this competition. Much of such law is in the commercial and corporate areas. The formerly purely private law of property and contracts, for example, is now overlaid with legislation, regulations, and judicial decisions reflecting the competition. The public law of taxation has significant impact on the whole private sphere. Courts have increasingly regarded resolution of seemingly private disputes as vehicles for response to changing social conditions and values—especially in the United States. Thus, manufacturers have experienced an expansion of liability for physical injuries caused by defects in their products. The mechanism of insurance allows manufacturers to spread such costs across the general consuming public.

VI INTERNATIONAL LAW

The legal process that concerns relations among nations is called international law. Belief and experience in some form of international law dates from at least the days of the Roman Empire. Such law differs greatly from national legal systems. No court has the authority or power to give judgments backed by coercive sanctions. Even in its most modern developments, international law is almost wholly based on custom. The precedents on which it rests are the acts of independent governments in their relations with one another, including treaties and conventions. Behind many of its rules is only a moral sanction: the public opinion of the civilized world. When treaties or conventions are involved, however, machinery to enforce them exists—either an arbitration or conciliation procedure or the submission of the dispute to a regional or international court.

A discernible body of rules and principles is observed or at least acknowledged in international relations. These rules concern such matters as territorial titles and boundaries, use of the high seas, limits on war, telecommunication, diplomatic and consular exchange, and use of air space. The major sources of international law on these matters are multilateral treaties, international custom, and such general principles as are recognized by civilized nations.

The United Nations is one of the primary mechanisms that articulate and create international law. The General Assembly and other agencies of the UN bring a combination of diplomacy, negotiation, and propaganda to bear on world affairs in ways that produce effective international treaties and affect world opinion. Certain courts also have indirect impact, including the International Court of Justice and the International War Crimes Tribunal. Domestic courts in various nations at times also engage in the articulation of international law.