“Law as the body of principles recognized and applied by the state in the administration of justice.”- illustrate and explain

Introduction

Law is a common word that we face in our everyday life very often. But we use this in a very abstract notion. There are many possible definitions of law available. Law can be portrayed as the principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognized and enforced by judicial decision. This can be written or verbal but in practice we observe written and well documented laws for enforcing. Laws ensure the well being and peace in the society and focus to reduce harmful actions by others. Law enforces a set of rules to control.

As the word suggests, it is very hard to define Law, as the meaning and attribute of law varies from person to person. In the ancient time Aristotle, Cicero; Karl Marks gave definition of law based on their point of view. Here are some definitions of law by different modern scholars:

Sir John William Salmond[1] wrote that “Law as the body of principles recognized and applied by the state in the administration of justice.”

Oliver Wendell Holmes[2] wrote in The Common Law (1881) that the life of the law is not logic but experience, “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”;

Roscoe Pound[3] (American jurist born 1870-1964) named the informal practices of legal institutions “the law-in-action,” contrasting it to “the law-in-the-books,” by which he meant formally enacted legal doctrine. He also stated that “The law must be stable, but it must not stand still.”[4]

Karl Nickerson Llewellyn[5] identified five “law jobs”

Law in any community serves to

r   Prevent disruptive conflicts within the community. Law helps maintain a peaceful, orderly society, and contribute to this stability by providing a means of resolving disputes.

r   Resolve disputes between members of the community. Property law facilitates business activities, while laws limiting the powers of government help ensure some individual freedom.

r   Accommodate changes in the circumstances of the community and its members. Law can also be a means of accomplishing social change, as for example in the prohibition of racial discrimination on the one hand and the establishment of national health and social security systems on the other.

r   Recognize the authority structure of the community

r   Establish procedural rules for performing other tasks

Laws are the body of principles as perceived and practiced in the society for a harmonious and peaceful community. Laws ensure that there is a settlement for disruption and enforces the authority of state. Laws are designed to impede unethical operations in the society, and amerce the delinquent. There are different categories and sub categories of laws that compel the tranquility within the guild members.

Sources of Law

From which the legal documents are made considered as the sources of law. This can be derived   from religious beliefs, morality, customs, folklore and mores. This does not have to be in written form always. In the past laws were seen from a different perspective. Even in different governance system the sources of law varies. Examples can be of communism, democracy, monarchy, and caliphate[6]. In each of them the source of law varies. In modern nation states laws are originated from the constitution, statues, case law, regulations emitted and regulated by statutory agencies. Religious books are also considered a source of law in some doctrine. Legislation is a source of law where laws are the consequence of activities by a group of people portraying the sovereign, who enact the law by consciously deliberating. Decision of connoisseur and juries made in the fore-time is also a source of law. Judges are obliged by judgment already made by court in the past, when they are confronted with a new case with analogous facts in this way, custom and judicial precedent serves as a source of law. Fairness and justness is another origin of law which is generally familiar as Equity. It enables one to ask if righteousness has been followed even when the law has been applied to the next person.

Whichever the source is, laws are always made to safeguard the tranquility and justice in the society.

Law and rules

A law applies to every single nation who lives in a particular country. On the other hand a rule is usually applied in a certain association and also to a limited number of people. We can use the members of an institute for an example. Rules are also applied in some societies like moral rules. People follow them even there is no legal warrant if they don’t follow them.

Law and Morality

Moral[7] values mean how people should live their lives. Moral values may vary significantly between incomparable cultures and even sometimes it varies between individuals within definite culture. Many people and cultures will ensure that definite activities are conscientiously wrong. For example a murderer will be punished through a legal pattern for this crime. Some of the actions are considered morally wrong but they are not made legal. Some activities are not only considered morally wrong but also illegal by the state. Anyhow many activities are considered as immoral but still they are not published by the law. Additionally some activities gradually never show any immorality but they are considering as a crime[8].

Morality is what is fair and unfair according to a number of values or beliefs administrating a troop of peoples’ behavior and this varies from society to society. And the perception of morality and justice defers in in culture to culture. Law and morality usually overlap on major issues, but may differ on other matters. Constant law holds that morality and law are connected. Law is not simply what is represented in measures and if constitution is not moral then it’s not law and also it has no esteem.

In order for man-made law to be valid it must accord with the higher law. Whereas the laws of nature proclaims that people should live in communities. The rules people created to regulate those communities were man-made and subservient to the laws of nature. In his work John Salmond also focused in this morality but it is very hard to classify morality in text[9].

Cicero[10] said,

“True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. … We cannot be freed from its obligations by Senate or People, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times…”

“De Republican”

Quoted in “A Short History of Western Legal Theory” by Kelly[11] (1992)

Legal realism is the view that that we should understand the law as it is practiced in the courts, law offices, and police stations, rather than as it is set forth in statutes or learned commentary.

For legal realists such as Oliver Wendell Holmes[12] who wrote in “The Common Law” in 1923, that the law was hardly a system of rules, we would not need lawyers conducting antipathetic proceedings. Because judges could only administer the rules but the concept of justice varies. In fact, judges have presence of mind with which they can decide a case in various ways.

Law and Justice

Otto Von Bismarck[13] said “People who love sausage and people who believe in justice should never watch either of them being made.”

It is believed that it is easy to assign the law in the same way to all cases will give rise to justice, its unnecessary. It is hard to ensure justice for everyone. The judge is also a human being and often he is represented with information from altered or modified point of view. One area of the law in England & Wales where there has been a lot of debate is on the amount of force a person can use on a burglar who breaks into that person’s home[14].

Majority of people would accept that the aim of any legal system should be justice. In the totalitarian regimes in Iraq under the precedence of Saddam Hussein (1979-2003) and in Russia under Joseph Stalin (1941-1953), where the law was just a means of repression, not a means of doing justice, Aristotle (384 BC – 322 BC)[15] taught that “fairness” is the basis of justice that we find in two forms: Distributive Justice and Corrective Justice. However, this simply replaces “What is just?” and “With what is fair?”

Justice might be assigned according to merit; to worth, to need, to status, or according to privilege. But whichever criterion we use, subjective facts come into play.  Dworkin concluded the province of policy which was the role of Parliament to determine and not for the court. The law is said to be a means to an end and for substantive justice. It exist not only must the procedures by which the law is applied be seen to be fair but also the content of the law that is; the social ends to be achieved. The analysis of substantive justice brings us back to such questions as to role of law in society and the relationship of law and morality.

In practice we can that often the law written and what is followed is different. This is a question of governance. In a poor governance system we can observe a lot of laws but few of them in practice[16]. But in the developed system we see few written law but all in action and judges relies on their own judgment for giving decision.

The Rule of Law

The Rule of Law is the principle that no one is above the law, everyone is equal[17]. The principle that governments only exercise their authority in accordance with the laws and established procedural steps that are referred to as due process is the most important application of the rule of law. There must be certainty in the law, so that all can regulate their affairs accordingly. The law should do justice by not punishing those whose actions are innocent or justified.  The Rule of Law and Natural Justice require that everyone be subject to the same law. There must be also access to independent tribunals and a system of appeals, and a means of preventing arbitrary law-making particularly by officials and inferior courts. Civil ethics[18] can be general guideline. Most of the civil ethics are designed to ensure the equality. And there is no question of injustice if everyone is equal in front of court.

Dicey[19] gave an explanation of the rule of law in the nineteenth century, as follows;

• There should be an absence of arbitrary power on the part of the state
• There should be equality before the law
• ·      There should be supremacy of ordinary law

Recent legislation such as the Constitutional Reform Act[20] 2005 has enshrined the principle of the rule of law in legislation for the first time in United Kingdom. The Human Rights Act[21] 1998 of United Kingdom as an example has gone some way to ensure that some of our basic rights cannot be removed by the state and are actionable in our own courts. So, no one should be above the law, and there should not be any special consideration based on the race, ethnicity, gender, social status or even political status for any one. And law implementing and decisive department must work autonomously without influence form anyone even the government itself. It must be raptured from any decadent stimulus.

Classification of law

1. Substantive of laws Versus Procedures of laws: Substantive of law means the substance which makes a law.  What a person can or cannot do that is explained by the meaning of a law. Substantive law is the required or written law that assigns rights and duties. It can be achieved by the enthusiasm method or it can be organized in constituted statutes.

Substantive law means procedural law. It means enforcing rights and duties. It constitutes the rules and methods. It also means the substantive law which is made and managed. A court hears and determines what happens in criminal or civil is comprised procedural law. These things differentiate within serving the substantive law and substantive law.

Procedural law comprises civil and administrative proceedings. During proceeding a court has to confirm the setups of the standards. We can show an example that a person cannot murder another person without any self-defense.

1. 2.      Public law Versus Private Law: Public law simply means that the government is involved. This law works with constitution and public. This is the theory of law that shows the relationship within individuals and state. The sub-divisions of public law are constitutional law, criminal law and administrative law.

Private law means the relationship between groups or individuals. It is also known as a public order in some cases. The relationship within different branches of a state is dealt by constitutional law. It is the most legal system. Administrative law defines the power of administrative agencies. Criminal law defines crimes that committed by individual or business. Because of that law we people of society are getting justice. Private law is not involved by the government. It is a part of civil law. It shows relationship within individuals.

1. Criminal law Versus Civil Law: this law is created for protecting people from the government. It helps people to protect themselves from each other. Criminal law doesn’t cover in court system but civil law covers anything.

Civil law describes the followings

1. Contract law or law of obligations
2. Law of torts
3. Property law
4. Family law family: this is related to issues and domestic relations. Including, but not limited to marriage, civil unions, divorce, spousal abuse, child custody and visitation, property, alimony, and child support awards, as well as child abuse issues, and adoption.
5. Succession, estate, probate, and testamentary laws
6. Law of agency
7. Labor law
8. Commercial law
9. 9.      Corporations law

10. Competition law

1. Common law Versus Civil law countries:  Common law[22] means that countries make decisions based on precedent. For example the United States of America. Common law relies on precedent but on the other hand civil law does not rely on precedent.

Categories and sub-categories of different types of law to ensure the justice in the society..

Categorized Law Types
Administrative and Public
1	Education Law	5	Social Security & SST
2	Federal Worker’s Compensation	6	Social Security Disability
3	Military / Veteran’s Benefits	7	State Worker’s Compensation
4	Social Security	8	Unemployment Compensation
Bankruptcy / Debtor / Creditor
1	Bankruptcy	3	Debtor Relations
2	Collections	4	Foreclosures
Business and Corporation
1	Accounting	6	Litigation
2	Agribusiness	7	Mergers and Acquisitions
3	Antitrust	8	Non-profit Corporations
4	Corporations and Partnerships	9	Securities
5	Franchise / Dealership
Commercial / Consumer
1	Bank / Savings  and Loan / Credit Union	4	Consumer Loans
2	Construction Contracts	5	Contracts
3	Consumer Credit	6	FMHA / FHA / VA Loans
		7	Lemon Law
		8	Student Loans
Constitutional
1	Civil Rights (General)
2	Discrimination
Criminal
1	Assault and Battery	5	Juvenile
2	Drugs and Narcotics	6	Misdemeanor
3	DUI	7	Traffic
4	Felony

Environmental and Natural Resources
1	Animals
2	Natural Resources
3	Oil and Gas
4	Water
Ethics and Professionalism
1	Code of Professionalism			4		Rules of Professional Conduct
2	Legal Advertising			5		Substance Abuse
3	Legal Malpractice
Family Law
1	Adoption			5		Paternity
2	Child Support			6		Protection from Abuse
3	Custody Disputes			7		Visitation
4	Divorce
Health
1	Health Care
2	Medical Malpractice
3	Pharmaceutical
Intellectual Property
1	Biotechnology			5		Patent
2	Communications			6		Sports and Entertainment Law
3	Computers			7		Telecommunications
4	Copyright			8		Trademark
Labor and Employment
1	Employee Representation			4		Union Representation
2	Employer Representation			5		Workplace Safety
3	Government Regulations
Taxation
1		Corporation Tax	4		Local Tax
2		Federal Tax	5		State Tax
3		Individual Tax

Law Office Management
1	Attorney-Client Relationship	7	Fees and Billing
2	Calendar Control	8	File Management
3	Case Tracking and Management	9	Office Management Technology
4	Conflict of Interest Checks	10	Supervising Staff
5	Client Communication	11	Settlement Accounting
6	Establishing/Terminating Relationship	12	Trust Accounts
Mediation and Arbitration
1	Alternative Dispute Resolution
2	Mediation / Arbitration
Miscellaneous
1	Federal Civil Court	5	Indian Law
2	Federal Criminal Court	6	International Law
3	General Practice	7	Public Utility Law
4	Immigration & Naturalization	8	Religion
Municipal and Governmental
1	District Attorney
2	Eminent Domain
Practice Skills Training
1	Advocacy	6	Judges
2	Discovery	7	Juries
3	Deposition	8	Negotiations
4	Evidence	9	Oral Arguments
5	Experts	10	Trials
		11	Witnesses
Real Property
1	Boundary Disputes	6	Landlord
2	Business Properties	7	Property (Miscellaneous)
3	Condominium	8	Residential
4	Construction	9	Tenant
5	Easements	10	Zoning

Tort
1	Appellate	5	Personal Injury
2	Automobile Accidents	6	Product Liability
3	Insurance	7	Property Damage
4	Miscellaneous Tort
Transportation
1	Admiralty	5	Motor Vehicles
2	Aviation	6	Railroads
3	Maritime Law	7	Space Law
4	Motor Carrier
Wills and Estates
1	Estate Administration	5	Legal Affairs of the Poor
2	Estate Planning	6	Preparation of Wills
3	Estates and Trusts	7	Probate of Wills
4	Legal Affairs of Sr. Citizens

Criminal & Civil Law – What’s the difference?

1. Civil law :

The purpose of civil laws is to sustain the rights of a single member of a class. The individual whose rights have been contravened starts of files the case at the court for getting justice. The person is known as the claimant and the courts that are involved are country court and high court. The judge makes the assessment and gives the resolution or judgment. The legal term that is used to give decision is liable, if the person is accountable by law or not liable if the person is not answerable for the incident by law. The balance of probabilities is used as the standard evidence for making judgment. The outcomes of cases are stated made by recession or rectification, injunction, specific performance, an award of damages.

2. Criminal law :

The purpose of criminal laws is to preserve law and order and to safeguard the communal interest. The country’s government files the case or bring allegation through the law enforcing agencies such as police and the Crown Prosecution Service (CPS)[23]. The prosecution is made at the magistrate’s court or the crown court. The magistrate or jury makes the assessment and gives the resolution or judgment. The result of the case is given in the form of the accused person found guilty or not guilty. The resolution is made beyond reasonable doughty. If the accused of found guilty then punishments are given in form of fine, community service, prison, suspension or dischargement.

As those laws differ in many ways, the main goal of such laws is to make the society a better place. All those law’s aim is to protect a person’s right and if the right is violated then castigate the liable. There are several stages of court, if the person is not satisfied by the resolution made in the respective court then they can always apply for a review or go to a higher level of court[24].

Conclusion

Law is an indispensable fragment in the contemporary civilization.[25] It ensures the amity and righteousness in the society in a sustainable manner. For this law must have to have a framework and a set of rules or in Sir John William Salmond’s way of saying modus operandi[26]. For this reason we see diverse commandments for different state of affairs or status quo in of our society. Different subsections of laws are there which ensures this concern. Laws are the only way which makes sure that the world is not a pandemonium, if there is no law then people would be capable to do whatnot they fancied to.  People could hurt or even slay one another. Laws are made to protect people it works as a shield against the injustice and it also handles disputes, errors, or poor judgment of any particular person.

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