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Understanding Law

Updated on September 7, 2009

Law comprises all the principles, rules, and enactments that are applied in the courts and enforced by the power of the state. The word 'law' is often used in contrast with the separate set of rules and precedents known as 'equity', a distinction that is important in England and the United States, and in other jurisdictions that draw their legal systems from the same historical source. In the United States it is customary to identify a legislative enactment as a law, whereas in England the preferred term is 'act'.

In the highly developed modern state the citizen is cared for and governed by the law from the cradle to the grave. Indeed the span goes beyond both extremes, for the question of abortion is subject to regulation by law, and after death the law will see that a decedent's will is put into effect, if it meets legal requirements.

In early times, legal systems concentrated on a few matters that seemed to be the most urgent: the maintenance of civil peace, the suppression of crimes of violence, the protection of property, and the enforcement of contemporary moral standards in family relations. Gradually the scope of law was extended, so that it is difficult to find modern examples of human conduct that are not in some way regulated by law.

Civil Law and Common Law Systems

In general, the national legal orders of the Western world can be divided into two great families: the civil-law countries, in which legal concepts, principles, and procedures have their remote origins in Roman law but are expressed in comprehensive codes like the Code Napoleon; and the common-law countries, which include England, the United States, and most of the members of the Commonwealth of Nations.

The common law originated in the grants of dispute-settling authority made by the kings of England to their justices in the 11th and 12th centuries. After a time, the central idea of precedent took firm hold in English legal thought, and the principle of 'stare decisis' (that past decisions should be followed in the adjudication of present controversies) became the working rule of the common-law courts. In short, the English common law was not a legislative creation. Rather, it came into existence essentially as a by-product of the day-to-day adjudication of disputes. The common law was a "customary" law (the custom of the judges) and early Parliaments rarely intervened to change the judge-made private law.

The English colonists in America brought with them the principles of the common law and the common-law judicial tradition. The American Revolution severed political ties between England and the United States, but it brought about no break in the continuity of legal tradition. The English common law was "received", as lawyers say, as the basis of the legal order in each of the original states. As years passed, American judges modified the rules of the English common law, so as to make the law more suitable for American conditions. Meanwhile, state legislatures increasingly superseded the common (that is, the judge-made) law by the enactment of statutory changes. In modern American law, legislation is at least of equal importance with the judge-made law. In its continuing traditions, however, and in its adherence to the principle of 'stare decisis', the American legal order, like the English, is still a common-law system.

Legal History

Other branches of learning can often throw light upon legal problems. Legal history is one of these, although its function is apt to be misunderstood. In the past, there was a romantic tendency to exaggerate the element of legal tradition and continuity and to make it a dogma. The greatest legal historians have always denounced this approach. Frederic W. Maitland, the 19th century English legal historian, resolutely warned against allowing the man in a toga or a coat of mail to dictate to modern law.

Legal history enables the student of law to see legal institutions from the outside, as a historian sees them. In this way, the law is seen as one of many factors in history that record humanity's effort to master itself, as well as its environment, and to make social life possible. It is significant that to students of history there is an irresistible interest in those ages when the law was being renewed in vigor and strength, making conscious efforts to understand its problems and deal with them.

Comparative Law

Maitland observed that "history is comparison". Comparative law is thus another approach to legal analysis. In this field of study, the comparison may be of two legal systems of our own day, or of two systems of the past, or of an earlier and a later stage of the same system. Whichever is the case, the scholarly operation is essentially the same. Like legal history, comparative law has the merit of transcending the boundaries of one's native legal system and of inducing greater breadth of view and understanding. Occasionally, comparative Jaw studies suggest possibilities for immediate improvements in legal technique. In antiquity it often happened that one country, and especially one city, would make a deliberate study of the legal institutions of a neighbor with a view to selecting best features of the neighboring system for reproduction in its own legal order. The English contact with India in the middle of the 19th century produced a remarkable development in comparative studies. Latterly, archeology has contributed a store of priceless material for study, the most spectacular being the code of Hammurabi.

Jurisprudence

Finally, there is the approach to legal understanding through the group of studies that English and American universities put together under the heading jurisprudence. This is often confusing, particularly to lawyers from civil-law countries, where it generally denotes the law embodied in judicial decisions. In common-law countries, jurisprudence means the philosophy or general theory of law. In jurisprudence, as it is understood in England, the United States, and other common-law countries, attention is addressed, first, to the sources from which law is derived, such as legislation, judicial precedent, custom, and prevailing ideas of morality. Then attention is given to certain pervasive legal concepts, such as right, duty, fault, cause, ownership, and discretion. Logic and dialectic may prove stimulating here, for careful theoretical distinctions are not always made in practical law administration. These matters, however, are only preliminary or subsidiary to the main business of jurisprudence, namely, the nature and philosophy of law.

The great systems of thought of the Middle Ages found a place for law very near to the "queen of the sciences": theology. A philosophy of law that is not part of a philosophy of life can hardly escape giving an impression that is unduly technical and lacking in force and urgency.

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