We hold , then , that the principle of ' ' Thomas v. Winchester ' ' is not limited to poisons , explosives , and things of like nature , to things which in their normal operation are implements of destruction . If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made , it is then a thing of danger . Its nature gives warning of the consequences to be expected . If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser , and used without new tests then , irrespective of contract , the manufacturer of this thing of danger is under a duty to make it carefully . .. There must be knowledge of a danger , not merely possible , but probable .
Cardozo 's new rule exists in no prior case , but is inferrable as a synthesis of the thing of danger principle stated in them , merely extending it to foreseeable danger even if the purposes for which it was designed were not themselves a source of great danger . ' ' MacPherson ' ' takes some care to present itself as foreseeable progression , not a wild departure . Cardozo continues to adhere to the original principle of ' ' Winterbottom ' ' , that absurd and outrageous consequences must be avoided , and he does so by drawing a new line in the last sentence quoted above : There must be knowledge of a danger , not merely possible , but probable . But while adhering to the underlying principle that ' ' some ' ' boundary is necessary , ' ' MacPherson ' ' overruled the prior common law by rendering the formerly dominant factor in the boundary , that is , the privity formality arising out of a contractual relationship between persons , totally irrelevant . Rather , the most important factor in the boundary would be the nature of the thing sold and the foreseeable uses that downstream purchasers would make of the thing . This illustrates two crucial principles that are often not well understood by non-lawyers. ( a ) The common law evolves , this evolution is in the hands of judges , and judges have made law for hundreds of years . ( b ) The reasons given for a decision are often more important in the long run than the outcome in a particular case . This is the reason that judicial opinions are usually quite long , and give rationales and policies that can be balanced with judgment in future cases , rather than the bright-line rules usually embodied in statutes . # Interaction of constitutional , statutory and common law # In common law legal systems ( connotation 2 ) , the common law ( connotation 1 ) is crucial to understanding almost all important areas of law . For example , in England and Wales , in English Canada , and in most states of the United States , the basic law of contracts , torts and property do not exist in statute , but only in common law ( though there may be isolated modifications enacted by statute ) . As another example , the Supreme Court of the United States in 1877 , held that a Michigan statute that established rules for solemnization of marriages did not abolish pre-existing common-law marriage , because the statute did not affirmatively require statutory solemnization and was silent as to preexisting common law . In almost all areas of the law ( even those where there is a statutory framework , such as contracts for the sale of goods , or the criminal law ) , legislature-enacted statutes generally give only terse statements of general principle , and the fine boundaries and definitions exist only in the common law ( connotation 1(a) ) . To find out what the precise law is that applies to a particular set of facts , one has to locate precedential decisions on the topic , and reason from those decisions by analogy . To consider but one example , the First Amendment to the United States Constitution states Congress shall make no law respecting an establishment of religion , or prohibiting the free exercise thereof but interpretation ( that is , determining the fine boundaries , and resolving the tension between the establishment and free exercise clauses ) of each of the important terms was delegated by Article III of the Constitution to the judicial branch , so that the current legal boundaries of the Constitutional text can only be determined by consulting the common law . In common law jurisdictions ( connotation 2 ) , legislatures operate under the assumption that statutes will be interpreted against the backdrop of the pre-existing common law ( connotation 1 ) and custom . For example , in most U.S. states , the criminal statutes are primarily codification of pre-existing common law . ( Codification is the process of enacting a statute that collects and restates pre-existing law in a single documentwhen that pre-existing law is common law , the common law remains relevant to the interpretation of these statutes . ) In reliance on this assumption , modern statutes often leave a number of terms and fine distinctions unstatedfor example , a statute might be very brief , leaving the precise definition of terms unstated , under the assumption that these fine distinctions will be inherited from pre-existing common law . ( For this reason , many modern American law schools teach the common law of crime as it stood in England in 1789 , because that centuries-old English common law is a necessary foundation to interpreting modern criminal statutes . ) With the transition from English law , which had common law crimes , to the new legal system under the U.S. Constitution , which prohibited ' ' ex post facto ' ' laws at both the federal and state level , the question was raised whether there could be common law crimes in the United States . It was settled in the case of ' ' United States v. Hudson and Goodwin ' ' , , which decided that federal courts had no jurisdiction to define new common law crimes , and that there must always be a ( constitutional ) statute defining the offense and the penalty for it . Still , many states retain selected common law crimes . For example , in Virginia , the definition of the conduct that constitutes the crime of robbery exists only in the common law , and the robbery statute only sets the punishment . Virginia Code section 1-200 establishes the continued existence and vitality of common law principles and provides that The common law of England , insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth , shall continue in full force within the same , and be the rule of decision , except as altered by the General Assembly . By contrast to statutory codification of common law , some statutes displace common law , for example to create a new cause of action that did not exist in the common law , or to legislatively overrule the common law . An example is the tort of wrongful death , which allows certain persons , usually a spouse , child or estate , to sue for damages on behalf of the deceased . There is no such tort in English common law ; thus , any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one . Where a wrongful death statute exists , the compensation or other remedy available is limited to the remedy specified in the statute ( typically , an upper limit on the amount of damages ) . Courts generally interpret statutes that create new causes of action narrowlythat is , limited to their precise termsbecause the courts generally recognize the legislature as being supreme in deciding the reach of judge-made law unless such statute should violate some second order constitutional law provision ( ' ' cf ' ' . judicial activism ) . Where a tort is rooted in common law ( connotation 1(a) ) , all traditionally recognized damages for that tort may be sued for , whether or not there is mention of those damages in the current statutory law . For instance , a person who sustains bodily injury through the negligence of another may sue for medical costs , pain , suffering , loss of earnings or earning capacity , mental and/or emotional distress , loss of quality of life , disfigurement and more . These damages need not be set forth in statute as they already exist in the tradition of common law . However , without a wrongful death statute , most of them are extinguished upon death . In the United States , the power of the federal judiciary to review and invalidate unconstitutional acts of the federal executive branch is stated in the constitution , Article III sections 1 and 2 : 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 . .. The judicial Power shall extend to all Cases , in Law and Equity , arising under this Constitution , the Laws of the United States , and Treaties made , or which shall be made , under their Authority .. The first famous statement of the judicial power was ' ' Marbury v. Madison ' ' , . Later cases interpreted the judicial power of Article III to establish the power of federal courts to consider or overturn any action of Congress or of any state that conflicts with the Constitution . # Overruling precedentthe limits of ' ' stare decisis ' ' # The United States federal courts are divided into twelve regional circuits , each with a circuit court of appeals ( plus a thirteenth , the Court of Appeals for the Federal Circuit , which hears appeals in patent cases and cases against the federal government , without geographic limitation ) . Decisions of one circuit court are binding on the district courts within the circuit and on the circuit court itself , but are only persuasive authority on sister circuits . District court decisions are not binding precedent at all , only persuasive . Most of the U.S. federal courts of appeal have adopted a rule under which , in the event of any conflict in decisions of panels ( most of the courts of appeal almost always sit in panels of three ) , the earlier panel decision is controlling , and a panel decision may only be overruled by the court of appeals sitting ' ' en banc ' ' ( that is , all active judges of the court ) or by a higher court . In these courts , the older decision remains controlling when an issue comes up the third time . Other courts , for example , the Court of Customs and Patent Appeals and the Supreme Court , always sit ' ' en banc ' ' , and thus the ' ' later ' ' decision controls . These courts essentially overrule all previous cases in each new case , and older cases survive only to the extent they do not conflict with newer cases . The interpretations of these courtsfor example , Supreme Court interpretations of the constitution or federal statutesare stable only so long as the older interpretation maintains the support of a majority of the court . Older decisions persist through some combination of belief that the old decision is right , and that it is not sufficiently wrong to be overruled . In the UK , since 2009 , the Supreme Court of the United Kingdom has the authority to overrule and unify decisions of lower courts . From 1966 to 2009 , this power lay with the House of Lords , granted by the Practice Statement of 1966 . Canada 's system , described below , avoids regional variability of federal law by giving national jurisdiction to both layers of appellate courts . # Common law as a foundation for commercial economies # The reliance on judicial opinion is a strength of common law systems , and is a significant contributor to the robust commercial systems in the United Kingdom and United States . Because there is reasonably precise guidance on almost every issue , parties ( especially commercial parties ) can predict whether a proposed course of action is likely to be lawful or unlawful . This ability to predict gives more freedom to come close to the boundaries of the law . For example , many commercial contracts are more economically efficient , and create greater wealth , because the parties know ahead of time that the proposed arrangement , though perhaps close to the line , is almost certainly legal . Newspapers , taxpayer-funded entities with some religious affiliation , and political parties can obtain fairly clear guidance on the boundaries within which their freedom of expression rights apply . In contrast , in non-common-law countries , and jurisdictions with very weak respect for precedent ( example , the U.S. Patent Office ) , fine questions of law are redetermined anew each time they arise , making consistency and prediction more difficult , and procedures far more protracted than necessary because parties can not rely on written statements of law as reliable guides . In jurisdictions that do not have a strong allegiance to a large body of precedent , parties have less ' ' a priori ' ' guidance and must often leave a bigger safety margin of unexploited opportunities , and final determinations are reached only after far larger expenditures on legal fees by the parties . This is the reason for the frequent choice of the law of the State of New York in commercial contracts , even when neither entity has extensive contacts with New Yorkand remarkably often even when neither party has contacts with the United States . Commercial contracts almost always include a choice of law clause to reduce uncertainty . Somewhat surprisingly , contracts throughout the world ( for example , contracts involving parties in Japan , France and Germany , and from most of the other states of the United States ) often choose the law of New York , even where the relationship of the parties and transaction to New York is quite attenuated . Because of its history as the United States ' commercial center , New York common law has a depth and predictability not ( yet ) available in any other jurisdictions of the United States . Similarly , American corporations are often formed under Delaware corporate law , and American contracts relating to corporate law issues ( merger and acquisitions of companies , rights of shareholders , and so on. ) include a Delaware choice of law clause , because of the deep body of law in Delaware on these issues . On the other hand , some other jurisdictions have sufficiently developed bodies of law so that parties have no real motivation to choose the law of a foreign jurisdiction ( for example , England and Wales , and the state of California ) , but not yet so fully developed that parties with no relationship to the jurisdiction choose that law . Outside the United States , parties that are in different jurisdictions from each other often choose the law of England and Wales , particularly when the parties are each in former British colonies and members of the Commonwealth . The common theme in all cases is that commercial parties seek predictability and simplicity in their contractual relations , and frequently choose the law of a common law jurisdiction with a well-developed body of common law to achieve that result . Likewise , for litigation of commercial disputes arising out of unpredictable torts ( as opposed to the prospective choice of law clauses in contracts discussed in the previous paragraph ) , certain jurisdictions attract an unusually high fraction of cases , because of the predictability afforded by the depth of decided cases . For example , London is considered the pre-eminent centre for litigation of admiralty cases . This is not to say that common law is better in every situation . For example , civil law can be clearer than case law when the legislature has had the foresight and diligence to address the precise set of facts applicable to a particular situation . For that reason , civil law statutes tend to be somewhat more detailed than statutes written by common law legislaturesbut , conversely , that tends to make the statute more difficult to read ( the United States tax code is an example ) . Nonetheless , as a practical matter , no civil law legislature can ever address the full spectrum of factual possibilities in the breadth , depth and detail of the case law of the common law courts of even a smaller jurisdiction , and that deeper , more complete body of law provides additional predictability that promotes commerce . # History # The term common law originally derives from the 1150s and 1160s , when Henry II of England established the secular English tribunals . The common law was the law that emerged as common throughout the realm ( as distinct from the various legal codes that preceded it , such as Mercian law , the Danelaw and the law of Wessex ) as the king 's judges followed each other 's decisions to create a unified common law throughout England . The doctrine of precedent developed during the 12th and 13th centuries , as the collective judicial decisions that were based in tradition , custom and precedent . The form of reasoning used in common law is known as casuistry or case-based reasoning . The common law , as applied in civil cases ( as distinct from criminal cases ) , was devised as a means of compensating someone for wrongful acts known as torts , including both intentional torts and torts caused by negligence , and as developing the body of law recognizing and regulating contracts . The type of procedure practiced in common law courts is known as the adversarial system ; this is also a development of the common law . # Medieval English common law # In the late 800s , Alfred the Great assembled the Doom book ( not to be confused with the more-famous Domesday Book from 200 years later ) , which collected the existing laws of Kent , Wessex , and Mercia , and attempted to blend in the Mosaic code , Christian principles , and Germanic customs dating as far as the fifth century . Before the Norman conquest in 1066 , justice was administered primarily by what is today known as the county courts ( the modern Counties of the United Kingdom In 1154 , Henry II became the first Plantagenet king . Among many achievements , Henry institutionalized common law by creating a unified system of law common to the country through incorporating and elevating local custom to the national , ending local control and peculiarities , eliminating arbitrary remedies and reinstating a jury systemcitizens sworn on oath to investigate reliable criminal accusations and civil claims . The jury reached its verdict through evaluating common local knowledge , not necessarily through the presentation of evidence , a distinguishing factor from today 's civil and criminal court systems . Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country . His judges would resolve disputes on an ad hoc basis according to what they interpreted the customs to be . The king 's judges would then return to London and often discuss their cases and the decisions they made with the other judges . These decisions would be recorded and filed . In time , a rule , known as ' ' stare decisis ' ' ( also commonly known as precedent ) developed , whereby a judge would be bound to follow the decision of an earlier judge ; he was required to adopt the earlier judge 's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another . Once judges began to regard each other 's decisions to be binding precedent , the pre-Norman system of local customs and law varying in each locality was replaced by a system that was ( at least in theory , though not always in practice ) common throughout the whole country , hence the name common law . Henry II 's creation of a powerful and unified court system , which curbed somewhat the power of canonical ( church ) courts , brought him ( and England ) into conflict with the church , most famously with Thomas Becket , the Archbishop of Canterbury . Eventually , Becket was murdered inside Canterbury Cathedral by four knights who believed themselves to be acting on Henry 's behalf . Whether Henry actually intended to bring about the assassination of Becket is debatable , but there is no question that at the time of the murder , the two men were embroiled in a bitter dispute regarding the power of Royal Courts to exercise jurisdiction over former clergymen . The murder of the Archbishop gave rise to a wave of popular outrage against the King . Henry was forced to repeal the disputed laws and to abandon his efforts to hold church members accountable for secular crimes ( see also Constitutions of Clarendon ) . Judge-made common law operated as the primary source of law for several hundred years , before Parliament acquired legislative powers to create statutory law . It is important to understand that common law is the older and more traditional source of law , and legislative power is simply a layer applied on top of the older common law foundation . Since the 12th century , courts have had parallel and co-equal authority to make law legislating from the bench is a traditional and essential function of courts , which was carried over into the U.S. system as an essential component of the judicial power specified by Article III of the U.S. constitution . Justice Oliver Wendell Holmes , Jr . observed in 1917 that judges do and must legislate . There are legitimate debates on how the powers of courts and legislatures should be balanced . However , a view that courts lack law-making power is historically inaccurate and constitutionally unsupportable . # Influences of foreign legal systems # # # Roman law # # The term common law ( connotation 2 ) is often used as a contrast to Roman-derived civil law , and the fundamental processes and forms of reasoning in the two are quite different . Nonetheless , there has been considerable cross-fertilization of ideas , while the two traditions and sets of foundational principles remain distinct . By the time of the rediscovery of the Roman law in Europe in the 12th and 13th centuries , the common law had already developed far enough to prevent a Roman law reception as it occurred on the continent . However , the first common law scholars , most notably Glanvill and Bracton , as well as the early royal common law judges , had been well accustomed with Roman law . Often , they were clerics trained in the Roman canon law . One of the first and throughout its history one of the most significant treatises of the common law , Bractons ' ' De Legibus et Consuetudinibus Angliae ' ' ( On the Laws and Customs of England ) , was heavily influenced by the division of the law in Justinians ' ' Institutes ' ' . The impact Roman law had decreased sharply after the age of Bracton , but the Roman divisions of actions into ' ' in rem ' ' ( typically , actions against a ' ' thing ' ' or property for the purpose of gaining title to that property ; must be filed in a court where the property is located ) and ' ' in personam ' ' ( typically , actions directed against a person ; these can affect a person 's rights and , since a person often owns things , his property too ) used by Bracton had a lasting effect and laid the groundwork for a return of Roman law structural concepts in the 18th and 19th centuries . Signs of this can be found in Blackstones ' ' Commentaries on the Laws of England ' ' , and Roman law ideas regained importance with the revival of academic law schools in the 19th century . As a result , today , the main systematic divisions of the law into property , contract , and tort ( and to some extent unjust enrichment ) can be found in the civil law as well as in the common law . # Propagation of the common law to the colonies and Commonwealth by reception statutes # # #Initial reception of English common law into new colonies , and adoption of common law on decolonization# # In ' ' Commentaries on the Laws of England ' ' ( Bk I , ch.4 , pp 106108 ) , Sir William Blackstone described the process by which English common law followed English colonization : # Plantations or colonies , in distant countries , are either such where the lands are claimed by right of occupancy only , by finding them desert and uncultivated , and peopling them from the mother-country ; or where , when already cultivated , they have been either gained by conquest , or ceded to us by treaties . And both these rights are founded upon the law of nature , or at least upon that of nations . But there is a difference between these two species of colonies , with respect to the laws by which they are bound . For it hath been held , that if an uninhabited country be discovered and planted by English subjects , all the English laws then in being , which are the birthright of every subject , are immediately there in force .. But in conquered or ceded countries , that have already laws of their own , the king may indeed alter and change those laws ; but , till he does actually change them , the ancient laws of the country remain , unless such as are against the law of God , as in the case of an infidel country . # In other words , if an ' uninhabited ' or ' infidel ' territory is colonized by Britain , then the English law automatically applies in this territory from the moment of colonization ; however if the colonized territory has a pre-existing legal system , the native law would apply ( effectively a form of indirect rule ) until formally superseded by the English law , through Royal Prerogative subjected to the Westminster Parliament . As colonies gained independence from Britain , in most cases the newly independent countries adopted English common law precedent as of the date of independence as the default law to carry forward into the new nation , to the extent not explicitly rejected by the newly freed colony 's founding documents or government . In some cases , the carry-forward was simply understood , with no express provision in either the new independence constitution or legislation . In other cases , the new legislature felt it necessary to dot i 's and cross t 's by enacting an express reception statute , even if common law had been received during the colonial period . Examples of both patterns are described below . # # Reception statutes in the United States # # For example , following the American Revolution in 1776 , one of the first legislative acts undertaken by each of the newly independent states was to adopt a reception statute that gave legal effect to the existing body of English common law to the extent that American legislation or the Constitution had not explicitly rejected English law . Some states enacted reception statutes as legislative statutes , while other states received the English common law through provisions of the state 's constitution , and some by court decision . British traditions such as the monarchy were rejected by the U.S. Constitution , but many English common law traditions such as habeas corpus , jury trials , and various other civil liberties were adopted in the United States . Significant elements of English common law prior to 1776 still remain in effect in many jurisdictions in the United States , because they have never been rejected by American courts or legislatures . For example , the New York Constitution of 1777 provides that : Alexander Hamilton emphasized in The Federalist that this New York constitutional provision expressly made the common law subject to such alterations and provisions as the legislature shall from time to time make concerning the same . Thus , even when reception was effected by a constitution , the common law was still subject to alteration by a legislature 's statute . One could note a certain irony : one of the first acts of many of the newly independent states was to adopt the law of the foreign sovereign from whom independence had just been gained . But this is one more demonstration of the point mentioned above ( Commercial economies ) , that the newly independent states recognized the importance of a predictable and established body of law to govern the conduct of citizens and businesses , and therefore adopted the richest available source of law . The Northwest Ordinance , which was approved by the Congress of the Confederation in 1787 , guaranteed judicial proceedings according to the course of the common law . Nathan Dane , the primary author of the Northwest Ordinance , viewed this provision as a default mechanism in the event that federal or territorial statutes were silent about a particular matter ; he wrote that if a statute makes an offence , and is silent as to the mode of trial , it shall be by jury , according to the course of the common law . In effect , the provision operated as a reception statute , giving legal authority to the established common law in the vast territories where no states had yet been established . Over time , as new states were formed from federal territories , these territorial reception statutes became obsolete and were re-enacted as state law . For example , a reception statute enacted by legislation in the state of Washington requires that the common law , so far as it is not inconsistent with the Constitution and laws of the United States , or of the state of Washington nor incompatible with the institutions and condition of society in this state , shall be the rule of decision in all the courts of this state . In this way , the common law was eventually incorporated into the legal systems of every state except Louisiana ( which inherited a civil law system from its French colonizers before the Louisiana Purchase of 1803 , adopting a code similar to but not directly based on the Napoleonic Code of 1804 ) . # #Reception in Canada# # The Canadian colonies received the common law and English statutes under Blackstone 's principles for the establishment of the legal system of a new colony . In five of the Canadian provinces , English law was received automatically , under the principle of a settled colony inheriting English law . In the other five provinces and the three territories , reception was governed by reception statutes . The reception of English law occurred long before Canada became fully independent , and reception statutes in Canada were not part of the decolonisation process . When Canada achieved formal independence with the passage of the Canada Act 1982 , no reception statutes were necessary for the decolonialisation process . English law had already been received in the various Canadian provinces and territories by legislation and judicial decisions over the previous two centuries . # @2 Atlantic Provinces @2 # In the four Atlantic provinces ( Nova Scotia , New Brunswick , Prince Edward Island , and Newfoundland and Labrador ) , the reception of English law was automatic , under the principle set out by Blackstone relating to settled colonies . British colonists were considered to have brought English common law as well as applicable English statutes with them . No reception statute was necessary . The reception date for New Brunswick is 1660 ; for Nova Scotia and Prince Edward Island , 1758 ; and for Newfoundland and Labrador , 1825. # @2 Quebec @2 # Quebec was settled as a French colony , and originally operated under the French civil law system , using the ' ' Cotume de Paris ' ' . Upon the transfer of the colony to British control , the British government issued the Royal Proclamation of 1763 , which imposed English common law on the colony , under the principle set out in Blackstone relating to captured colonies . However , in 1774 , the British Parliament passed the Quebec Act , which restored the French civil law for matters of private law ( e.g. , contracts , property , successions ) , while keeping the English common law as the basis for public law in the colony , notably the criminal law . Subsequently , with the passage of the Civil Code of Lower Canada in 1866 , Quebec 's civil law became entirely statute-based , using the civil law system for matters within provincial jurisdiction . Public law in Quebec continues to have its origin in the common law , but even here civil law plays a strong role . Where federal legislation requires interpretation , judges must look to the Civil Code of Quebec . # @2 Ontario @2 # The territory now forming Ontario was originally part of Quebec , and thus was under the civil law . When Quebec was divided into the two provinces of Upper and Lower Canada by the Constitutional Act of 1791 , the first Act passed by the Legislature of Upper Canada was to adopt the law of England for all purposes , replacing the civil law . This statute adopted both the English common law and English statute law . The foundation for the operation of the common law in Ontario traces back to that reception statute . # @2 The North-West Territories , Manitoba , Saskatchewan and Alberta @2 # The new Dominion of Canada acquired the territories of Rupert 's Land and the North-Western Territory from the Hudson 's Bay Company in 1870 . These territories were considered to have been settled by British colonists , and therefore the reception of English law was automatic . However , given the long history of control by the Hudson 's Bay Company , there was some uncertainty as to the date of reception . To resolve this uncertainty , various statutes were passed to set the date of reception as July 15 , 1870 , the date of the transfer of these two territories to Canada . The Province of Manitoba set this date for the reception of English law for matters coming within provincial jurisdiction . The Legislature of the North-West Territories passed an Ordinance adopting the same date for matters coming within territorial jurisdiction . The federal Parliament eventually enacted a provision adopting this date for all matters in the North-West Territories . That provision was carried forward in the provinces of Alberta and Saskatchewan , when they were created by the Alberta Act and the Saskatchewan Act . The same provision is the basis for the reception date of English law in the Northwest Territories , Yukon and Nunavut. # @2 British Columbia @2 # British Columbia was considered to be a settled colony and therefore received English law automatically , under the principle set out by Blackstone. # #Reception in Hong Kong# # When Hong Kong was handed over to China in 1997 , Hong Kong retained the common law through a reception statute in Chapter I , Article 8 of the Hong Kong Basic Law : # #Reception in other British colonies# # The pattern was repeated in many other former British colonies as they gained independence from the United Kingdom . Ireland , Australia , New Zealand , India , Belize , and various Caribbean and African nations have adopted English common law through reception statutes although they do not inevitably continue to copy English Common Law ; later cases can often draw on decisions in other Common Law jurisdictions. # Decline of Latin maxims , and adding flexibility to ' ' stare decisis ' ' # Well into the 19th century , ancient maxims played a large role in common law adjudication . Many of these maxims had originated in Roman Law , migrated to England before the introduction of Christianity to the British Isles , and were typically stated in Latin even in English decisions . Many examples are familiar in everyday speech even today , One can not be a judge in one 's own cause ( see Dr. Bonham 's Case ) , rights are reciprocal to obligations , and the like . Judicial decisions and treatises of the 17th and 18th centuries , such at those of Lord Chief Justice Edward Coke , presented the common law as a collection of such maxims . See also Thomas Jefferson 's letter to Thomas Cooper . Reliance on old maxims and rigid adherence to precedent , no matter how old or ill-considered , was under full attack by the late 19th century . Oliver Wendell Holmes , Jr . in his famous article , The Path of the Law , commented , It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV . It is still more revolting if the grounds upon which it was laid down have vanished long since , and the rule simply persists from blind imitation of the past . Justice Holmes noted that study of maxims might be sufficient for the man of the present , but the man of the future is the man of statistics and the master of economics . In an 1880 lecture at Harvard , he wrote : # The life of the law has not been logic ; it has been experience . The felt necessities of the time , the prevalent moral and political theories , intuitions of public policy , avowed or unconscious , even the prejudices which judges share with their fellow men , have had a good deal more to do than the syllogism in determining the rules by which men should be governed . The law embodies the story of a nation 's development through many centuries , and it can not be dealt with as if it contained only the axioms and corollaries of a book of mathematics . # In the early 20th century , Louis Brandeis , later appointed to the United States Supreme Court , became noted for his use of policy-driving facts and economics in his briefs , and extensive appendices presenting facts that lead a judge to the advocate 's conclusion . By this time , briefs relied more on facts than on Latin maxims . Reliance on old maxims is now deprecated . Common law decisions today reflect both precedent and policy judgment drawn from economics , the social sciences , business , decisions of foreign courts , and the like . The degree to which these external factors ' ' should ' ' influence adjudication is the subject of active debate , but that judges ' ' do ' ' draw of learning from other fields and jurisdictions is a fact of modern legal life . # 1870 through 20th century , and the procedural merger of law and equity # As early as the 15th century , it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person . For example , they might argue that an award of damages ( at common law ( connotation 3 ) ) was not sufficient redress for a trespasser occupying their land , and instead request that the trespasser be evicted . From this developed the system of equity , administered by the Lord Chancellor , in the courts of chancery . By their nature , equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other , even though it was established by the 17th century that equity should prevail . A famous example is the fictional case of ' ' Jarndyce v. Jarndyce ' ' in ' ' Bleak House ' ' , by Charles Dickens . In England , courts of law ( connotation 3 ) and equity were combined by the Judicature Acts of 1873 and 1875 , with equity being supreme in case of conflict . In the United States , parallel systems of law ( providing money damages , with cases heard by a jury upon either party 's request ) and equity ( fashioning a remedy to fit the situation , including injunctive relief , heard by a judge ) survived well into the 20th century . The United States federal courts procedurally separated law and equity : the same judges could hear either kind of case , but a given case could only pursue causes in law or in equity , and the two kinds of cases proceeded under different procedural rules . This became problematic when a given case required both money damages and injunctive relief . In 1937 , the new Federal Rules of Civil Procedure combined law and equity into one form of action , the civil action . Fed.R.Civ.P. 2 . The distinction survives to the extent that issues that were common law ( connotation 3 ) as of 1791 ( the date of adoption of the Seventh Amendment ) are still subject to the right of either party to request a jury , and equity issues are decided by a judge . Delaware , Mississippi , and Tennessee still have separate courts of law and equity , for example , the Court of Chancery . In many states there are separate divisions for law and equity within one court . # Common law pleading and its abolition in the early 20th century # For centuries , through the 19th century , the common law recognized only specific forms of action , and required very careful drafting of the opening pleading ( called a writ ) to slot into one of them : Debt , Detinue , Covenant , Special Assumpsit , General Assumpsit , Trespass , Trover , Replevin , Case ( or Trespass on the Case ) , and Ejectment . To initiate a lawsuit , a pleading had to be drafted to meet myriad technical requirements : correctly categorizing the case into the correct legal pigeonhole ( pleading in the alternative was not permitted ) , and using specific magic words encrusted over the centuries . Under the old common law pleading standards , a suit by a ' ' pro se ' ' ( for oneself , without a lawyer ) party was all but impossible , and there was often considerable procedural jousting at the outset of a case over minor wording issues . One of the major reforms of the late 19th century and early 20th century was the abolition of common law pleading requirements . A plaintiff can initiate a case by giving the defendant a short and plain statement of facts that constitute an alleged wrong . This reform moved the attention of courts from technical scrutiny of words to a more rational consideration of the facts , and opened access to justice far more broadly . # Contrasts between common law and civil law systems # # Adversarial system vs. inquisitorial system # Common law courts usually use an adversarial system , in which two sides present their cases to a neutral judge . In contrast , civil law systems usually use an inquisitorial system in which an examining magistrate serves two roles by developing the evidence and arguments for one side and then the other during the investigation phase . The examining magistrate then presents the dossier detailing his or her findings to the president of the bench that will adjudicate on the case where it has been decided that a trial shall be conducted . Therefore the president of the bench 's view of the case is not neutral and may be biased while conducting the trial after the reading of the dossier . Unlike the common law proceedings , the president of the bench in the inquisitorial system is not merely an umpire and is entitled to directly interview the witnesses or express comments during the trial , as long as he or she does not express his or her view on the guilt of the accused . The proceeding in the inquisitorial system is essentially by writing . Most of the witnesses would have given evidence in the investigation phase and such evidence will be contained in the dossier under the form of police reports . In the same way , the accused would have already put his or her case at the investigation phase but he or she will be free to change her or his evidence at trial . Whether the accused pleads guilty or not , a trial will be conducted . Unlike the adversarial system , the conviction and sentence to be served ( if any ) will be released by the trial jury together with the president of the trial bench , following their common deliberation . There are many exceptions in both directions . For example , most proceedings before U.S. federal and state agencies are inquisitorial in nature , at least the initial stages ( ' ' e.g. ' ' , a patent examiner , a social security hearing officer , and so on ) , even though the law to be applied is developed through common law processes . # General principles of law # Both common law and civil law jurisdictions have formed what they variously call pure common law or general principles of law to define what the law is in the absence of , or gap in , legislation . # Constant jurisprudence # Unlike ' ' stare decisis ' ' , the sharp separation of powers between the judiciary and executive , and distinction between ' ' jurisprudence constante ' ' and administrative law , is maintained by considering judge-made law to be non-binding. # Contrasting role of treatises and academic writings in common law and civil law systems # The role of the legal academy presents a significant cultural difference between common law ( connotation 2 ) and civil law jurisdictions . In common law jurisdictions , legal treatises compile common law decisions and state overarching principles that ( in the author 's opinion ) explain the results of the cases . However , in common law jurisdictions , treatises are not the law , and lawyers and judges tend to use these treatises as only finding aids to locate the relevant cases . In common law jurisdictions , scholarly work is seldom cited as authority for what the law is . When common law courts rely on scholarly work , it is almost always only for factual findings , policy justification , or the history and evolution of the law , but the court 's legal conclusion is reached through analysis of relevant statutes and common law , seldom scholarly commentary . In contrast , in Civil law ( legal system ) # Common law legal systems in the present day # The common law constitutes the basis of the legal systems of : England and Wales and Northern Ireland in the UK , Ireland , federal law in the United States and the law of individual U.S. states ( except Louisiana ) , federal law throughout Canada and the law of the individual provinces and territories ( except Quebec ) , Australia ( both federal and individual states ) , Kenya , New Zealand , South Africa , India , Myanmar , Malaysia , Bangladesh , Brunei , Pakistan , Singapore , Hong Kong , Antigua and Barbuda , Barbados , Bahamas , Belize , Dominica , Grenada , Jamaica , St Vincent and the Granadines , Saint Kitts and Nevis , Trinidad and Tobago , and many other generally English-speaking countries or Commonwealth countries ( except the UK 's Scotland , which is bijuridicial , and Malta ) . Essentially , every country that was colonised at some time by England , Great Britain , or the United Kingdom uses common law except those that were formerly colonised by other nations , such as Quebec ( which follows the law of France in part ) , South Africa and Sri Lanka ( which follow Roman Dutch law ) , where the prior civil law system was retained to respect the civil rights of the local colonists . India uses common law except in the state of Goa which retains the Portuguese civil code . Guyana and Saint Lucia have mixed Common Law and Civil Law systems . # Scotland # Scotland is often said to use the civil law system , but it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of its own common law long predating the Treaty of Union with England in 1707 ( see Legal institutions of Scotland in the High Middle Ages ) , founded on the customary laws of the tribes residing there . Historically , Scots common law differed in that the use of ' ' precedents ' ' was subject to the courts ' seeking to discover the principle that justifies a law rather than searching for an example as a ' ' precedent ' ' , and principles of natural justice and fairness have always played a role in Scots Law . From the 19th century , the Scottish approach to precedent developed into a stare decisis akin to that already established in England thereby reflecting a narrower , more modern approach to the application of case law in subsequent instances . This is not to say that the substantive rules of the common laws of both countries are the same although in many matters ( particularly those of UK-wide interest ) they are very similar . Comparable pluralistic ( or ' mixed ' ) legal systems operate in Quebec , Louisiana and South Africa . # States of the United States ( 1600s on ) # # #New York ( 1600s ) # # The state of New York , which also has a civil law history from its Dutch colonial days , also began a codification of its law in the 19th century . The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure . The original colony of New Netherland was settled by the Dutch and the law was also Dutch . When the English captured pre-existing colonies they continued to allow the local settlers to keep their civil law . However , the Dutch settlers revolted against the English and the colony was recaptured by the Dutch . When the English finally regained control of New Netherland they forced , as a punishment unique in the history of the British Empire , the English common law upon all the colonists , including the Dutch . This was problematic , as the patroon system of land holding , based on the feudal system and civil law , continued to operate in the colony until it was abolished in the mid-19th century . The influence of Roman-Dutch law continued in the colony well into the late 19th century . The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days . # #Louisiana ( 1700s ) # # Uniquely among U.S. states , Louisiana 's codified system , the Louisiana Civil Code , is based on principles of law from continental Europe instead of common law . These principles derive ultimately from Roman law , transmitted through Spanish and French law , as the state 's current territory intersects the area of North America colonized by Spain and by France . Contrary to popular belief , the Louisiana code does not directly derive from the Napoleonic Code , as the latter was enacted in 1804 , one year after the Louisiana Purchase . However , the two codes are similar in many respects due to common roots . Historically notable among the Louisiana code 's differences from common law is the role of property rights among women , particularly in inheritance gained by widows . # #California ( 1850s ) # # The U.S. state of California has a system based on common law , but it has codified the law in the manner of the civil law jurisdictions . The reason for the enactment of the California Codes in the 19th century was to replace a pre-existing system based on Spanish civil law with a system based on common law , similar to that in most other states . California and a number of other Western states , however , have retained the concept of community property derived from civil law . The California courts have treated portions of the codes as an extension of the common-law tradition , subject to judicial development in the same manner as judge-made common law . ( Most notably , in the case ' ' Li v. Yellow Cab Co. ' ' , 13 Cal.3d 804 ( 1975 ) , the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence. ) # United States federal system ( 1789 and 1938 ) # The United States federal government ( as opposed to the states ) has a variant on a common law system . United States federal courts only act as interpreters of statutes and the constitution by elaborating and precisely defining the broad language ( connotation 1(b) above ) , but , unlike state courts , do not act as an independent source of common law ( connotation 1(a) above ) . Before 1938 , the federal courts , like almost all other common law courts , decided the law on any issue where the relevant legislature ( either the U.S. Congress or state legislature , depending on the issue ) , had not acted , by looking to courts in the same system , that is , other federal courts , even on issues of state law , and even where there was no express grant of authority from Congress or the Constitution . In 1938 , the U.S. Supreme Court in ' ' Erie Railroad Co. v. Tompkins ' ' ( 1938 ) , overruled earlier precedent , and held There is no federal general common law , thus confining the federal courts to act only as interpreters of law originating elsewhere . ' ' E.g. ' ' , ' ' Texas Industries v. Radcliff ' ' , ( without an express grant of statutory authority , federal courts can not create rules of intuitive justice , for example , a right to contribution from co-conspirators ) . Post-1938 , federal courts deciding issues that arise under state law are required to defer to state court interpretations of state statutes , or reason what a state 's highest court would rule if presented with the issue , or to certify the question to the state 's highest court for resolution . Later courts have limited ' ' Erie ' ' slightly , to create a few situations where United States federal courts are permitted to create federal common law rules without express statutory authority , for example , where a federal rule of decision is necessary to protect uniquely federal interests , such as foreign affairs , or financial instruments issued by the federal government . ' ' See , e.g. ' ' , ' ' Clearfield Trust Co. v. United States ' ' , ( giving federal courts the authority to fashion common law rules with respect to issues of federal power , in this case negotiable instruments backed by the federal government ) ; ' ' see also ' ' ' ' International News Service v. Associated Press ' ' , ( 1918 ) ( creating a cause of action for misappropriation of hot news that lacks any statutory grounding , but that is one of the handful of federal common law actions that survives today ) ; ' ' National Basketball Association v. Motorola , Inc. ' ' , 105 F.3d 841 , 84344 , 853 ( 2d Cir. 1997 ) ( noting continued vitality of INS hot news tort under New York state law , but leaving open the question of whether it survives under federal law ) . Except on Constitutional issues , Congress is free to legislatively overrule federal courts ' common law . # India ( 19th century and 1948 ) # Indian Law is largely based on English common law because of the long period of British colonial influence during the period of the British Raj . After the failed rebellion against the British in 1857 , the British Parliament took over control of India from the British East India Company , and British India came under the direct rule of the Crown . The British Parliament passed the Government of India Act of 1858 to this effect , which set up the structure of British government in India . It established in Britain the office of the Secretary of State for India through whom the Parliament would exercise its rule , along with a Council of India to aid him . It also established the office of the Governor-General of India along with an Executive Council in India , which consisted of high officials of the British Government . Much of contemporary Indian law shows substantial European and American influence . Legislation first introduced by the British is still in effect in modified form today . During the drafting of the Indian Constitution , laws from Ireland , the United States , Britain , and France were all synthesized to produce a refined set of Indian laws . Indian laws also adhere to the United Nations guidelines on human rights law and environmental law . Certain international trade laws , such as those on intellectual property , are also enforced in India . Indian family law is complex , with each religion adhering to its own specific laws . In most states , registering marriages and divorces is not compulsory . There are separate laws governing Hindus , Muslims , Christians , Sikhs and followers of other religions . The exception to this rule is in the state of Goa , where a Portuguese uniform civil code is in place , in which all religions have a common law regarding marriages , divorces and adoption . Ancient India represented a distinct tradition of law , and had an historically independent school of legal theory and practice . The ' ' Arthashastra ' ' , dating from 400 BCE and the ' ' Manusmriti ' ' , from 100 CE , were influential treatises in India , texts that were considered authoritative legal guidance . Manu 's central philosophy was tolerance and pluralism , and was cited across Southeast Asia . Early in this period , which finally culminated in the creation of the Gupta Empire , relations with ancient Greece and Rome were not infrequent . The appearance of similar fundamental institutions of international law in various parts of the world show that they are inherent in international society , irrespective of culture and tradition . Inter-State relations in the pre-Islamic period resulted in clear-cut rules of warfare of a high humanitarian standard , in rules of neutrality , of treaty law , of customary law embodied in religious charters , in exchange of embassies of a temporary or semi-permanent character . When India became part of the British Empire , there was a break in tradition , and Hindu and Islamic law were supplanted by the common law . As a result , the present judicial system of the country derives largely from the British system and has little correlation to the institutions of the pre-British era . There are 1160 laws as of September 2007. # Canada ( 1867 ) # Canada has separate federal and provincial legal systems . The division of jurisdiction between the federal and provincial Parliaments is specified in the Canadian constitution . Each province is considered a separate jurisdiction with respect to common law matters , with its own procedural law , statutorily created provincial courts , superior trial courts with inherent jurisdiction , and culminating in the Court of Appeal of the province , which is the highest court in provincial jurisdiction , only subject to the Supreme Court of Canada in terms of appeal of their decisions . All but one of the provinces of Canada use a common law system ( the exception being Quebec , which uses a civil law system for issues arising within provincial jurisdiction , such as property ownership and contracts ) . Canadian federal statutes must use the terminology of both the common law and civil law for those matters ; this is referred to as legislative bijuralism . Federal Courts operate under a separate system throughout Canada and deal with narrower subject matter than superior courts in provincial jurisdiction . They hear cases reserved for federal jurisdiction by the Canadian constitution , such as immigration , intellectual property , judicial review of federal government decisions , and admiralty . The Federal Court of Appeal Federal Court of Appeal is the appellate level court in federal jurisdiction and hears cases in multiple cities , and unlike the United States , the Canadian Federal Court of Appeal is not divided into appellate circuits . Criminal law is uniform throughout Canada . It is based on the constitution and federal statutory Criminal Code , as interpreted by the Supreme Court of Canada . # Nicaragua # Nicaragua 's legal system also is a mixture of the English Common Law and the Civil Law . # Israel ( 1948 ) # Israel has a mixed system of common law and civil law . While Israeli law is undergoing codification , its basic principles are inherited from the law of the British Mandate of Palestine and thus resemble those of British and American law , namely : the role of courts in creating the body of law and the authority of the supreme court in reviewing and if necessary overturning legislative and executive decisions , as well as employing the adversarial system . One of the primary reasons that the Israeli constitution remains unwritten is the fear by whatever party holds power that creating a written constitution , combined with the common-law elements , would severely limit the powers of the Knesset ( which , following the doctrine of parliamentary sovereignty , holds near-unlimited power ) . # Roman Dutch Common law # Roman Dutch Commons law is a bijuridical or mixed system of law similar to the common law system in Scotland and Louisiana . Roman Dutch common law jurisdictions include South Africa , Botswana , Lesotho , Namibia , Swaziland , Sri-Lanka and Zimbabwe . Many of these jurisdictions recognise customary law , and in some , such as South Africa the Constitution requires that the common law be developed in accordance with the Bill of Rights . Roman Dutch common law is a development of Roman Dutch law by courts in the Roman Dutch common law jurisdictions . During the Napoleonic wars the Kingdom of the Netherlands adopted the French ' ' code civil ' ' in 1809 , however the Dutch colonies in the Cape of Good Hope and Sri Lanka , at the time called Ceylon , were seized by the British to prevent them being used as bases by the French Navy . The system was developed by the courts and spread with the expansion of British colonies in Southern Africa . Roman Dutch common law relies on legal principles set out in Roman law sources such as Justinian 's Institutes and Digest , and also on the writing of Dutch jurists of the 15th century such as Grotius and Voet . In practice , the majority of decisions rely on recent precedent . # Alternatives to common law systems # The main alternative to the common law system is the civil law system , which is used in Continental Europe , and most of the rest of the world . The contrast between civil law and common law legal systems has become increasingly blurred , with the growing importance of jurisprudence ( similar to case law but not binding ) in civil law countries , and the growing importance of statute law and codes in common law countries . Examples of common law being replaced by statute or codified rule in the United States include criminal law ( since 1812 , U.S. courts have held that criminal law must be embodied in statute if the public is to have fair notice ) , commercial law ( the Uniform Commercial Code in the early 1960s ) and procedure ( the Federal Rules of Civil Procedure in the 1930s and the Federal Rules of Evidence in the 1970s ) . But note that in each case , the statute sets the general principles , but the interstitial common law process ( connotation 1(b) ) determines the scope and application of the statute . An example of convergence from the other direction is shown in , in which the European Court of Justice held that questions it has already answered need not be resubmitted . This brought in a distinctly common law principle into an essentially civil law jurisdiction . The former Soviet Bloc and other Socialist countries used a Socialist law system . Much of the Muslim world uses Sharia ( also called Islamic law ) . # Scholarly works # Lord Chief Justice Edward Coke , a 17th-century English jurist and Member of Parliament , wrote several legal texts that formed the basis for the modern common law , with lawyers in both England and America learning their law from his ' ' Institutes ' ' and ' ' Reports ' ' until the end of the 18th century . His works are still cited by common law courts around the world . The next definitive historical treatise on the common law is ' ' Commentaries on the Laws of England ' ' , written by Sir William Blackstone and first published in 17651769 . Since 1979 , a facsimile edition of that first edition has been available in four paper-bound volumes . Today it has been superseded in the English part of the United Kingdom by Halsbury 's Laws of England that covers both common and statutory English law . While he was still on the Massachusetts Supreme Judicial Court , and before being named to the U.S. Supreme Court , Justice Oliver Wendell Holmes , Jr . published a short volume called ' ' The Common Law ' ' , which remains a classic in the field . Unlike Blackstone and the Restatements , Holmes ' book only briefly discusses what the law ' ' is ' ' ; rather , Holmes describes the common law ' ' process ' ' . Law professor John Chipman Gray 's ' ' The Nature and Sources of the Law ' ' , an examination and survey of the common law , is also still commonly read in U.S. law schools . In the United States , Restatements of various subject matter areas ( Contracts , Torts , Judgments , and so on. ) , edited by the American Law Institute , collect the common law for the area . The ALI Restatements are often cited by American courts and lawyers for propositions of uncodified common law , and are considered highly persuasive authority , just below binding precedential decisions . The Corpus Juris Secundum is an encyclopedia whose main content is a compendium of the common law and its variations throughout the various state jurisdictions . Scots ' ' common law ' ' covers matters including murder and theft , and has sources in custom , in legal writings and previous court decisions . The legal writings used are called ' ' Institutional Texts ' ' and come mostly from the 17th , 18th and 19th centuries . Examples include Craig , ' ' Jus Feudale ' ' ( 1655 ) and Stair , ' ' The Institutions of the Law of Scotland ' ' ( 1681 ) .
@@5919 Constitutional law is the body of law which defines the relationship of different entities within a state , namely , the executive , the legislature , and the judiciary . Not all nation states have codified constitutions , though all such states have a ' ' jus commune ' ' , or law of the land , that may consist of a variety of imperative and consensual rules . These may include customary law , conventions , statutory law , judge-made law , or international rules and norms . # State and legal structure # Constitutional laws may often be considered second order rulemaking or rules about making rules to exercise power . It governs the relationships between the judiciary , the legislature and the executive with the bodies under its authority . One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power . For example , in a unitary state , the constitution will vest ultimate authority in one central administration and legislature , and judiciary , though there is often a delegation of power or authority to local or municipal authorities . When a constitution establishes a federal state , it will identify the several levels of government coexisting with exclusive or shared areas of jurisdiction over lawmaking , application and enforcement . # Human rights # Human rights or civil liberties form a crucial part of a country 's constitution and govern the rights of the individual against the state . Most jurisdictions , like the United States and France , have a codified constitution , with a bill of rights . A recent example is the Charter of Fundamental Rights of the European Union which was intended to be included in the Treaty establishing a Constitution for Europe , that failed to be ratified . Perhaps the most important example is the Universal Declaration of Human Rights under the UN Charter . These are intended to ensure basic political , social and economic standards that a nation state , or intergovernmental body is obliged to provide to its citizens but many do include its governments . Some countries like the United Kingdom have no entrenched document setting out fundamental rights ; in those jurisdictions the constitution is composed of statute , case law and convention . A case named ' ' Entick v. Carrington ' ' is a constitutional principle deriving from the common law . John Entick 's house was searched and ransacked by Sherriff Carrington . Carrington argued that a warrant from a Government minister , the Earl of Halifax was valid authority , even though there was no statutory provision or court order for it . The court , led by Lord Camden stated that , # The great end , for which men entered into society , was to secure their property . That right is preserved sacred and incommunicable in all instances , where it has not been taken away or abridged by some public law for the good of the whole . By the laws of England , every invasion of private property , be it ever so minute , is a trespass .. If no excuse can be found or produced , the silence of the books is an authority against the defendant , and the plaintiff must have judgment . # Inspired by John Locke , the fundamental constitutional principle is that the individual can do anything but that which is forbidden by law , while the state may do nothing but that which is authorized by law . The commonwealth and the civil law jurisdictions do not share the same constitutional law underpinnings. # Legislative procedure # Another main function of constitutions may be to describe the procedure by which parliaments may legislate . For instance , special majorities may be required to alter the constitution . In bicameral legislatures , there may be a process laid out for second or third readings of bills before a new law can enter into force . Alternatively , there may further be requirements for maximum terms that a government can keep power before holding an election . # Study of constitutional law # Constitutional law is a major focus of legal studies and research . For example , most law students in the United States are required to take a class in Constitutional Law during their first year , and several law journals are devoted to the discussion of constitutional issues . # The Rule of Law # The doctrine of the rule of law dictates that government must be conducted according to law . Dicey identified three essential elements of the British Constitution which were indicative of the rule of law : #Absence of arbitrary power ; #Equality before the law ; #The Constitution is a result of the ordinary law of the land . # The Separation of Powers # The Separation of Powers is often regarded as a second limb functioning alongside the Rule of Law to curb the powers of the Government . In most modern nation states , power is divided and vested into three branches of government : The Executive , the Legislature and the Judiciary . The first and the second are harmonized in traditional Westminster forms of government . # Constitutions by region #
@@6469 Canon law is the body of laws and regulations made by ecclesiastical authority ( Church leadership ) , for the government of a Christian organization or church and its members . It is the internal ecclesiastical law governing the Catholic Church ( both Latin Church and Eastern Catholic Churches ) , the Eastern and Oriental Orthodox churches , and the Anglican Communion of churches . The way that such church law is legislated , interpreted and at times adjudicated varies widely among these three bodies of churches . In all three traditions , a canon was originally a rule adopted by a church council ; these canons formed the foundation of canon law . # Etymology # Greek ' ' kanon ' ' / , Arabic Qanon / , Hebrew kaneh / , straight ; a rule , code , standard , or measure ; the root meaning in all these languages is reed ( ' ' cf. ' ' the Romance-language ancestors of the English word cane ) . # Canons of the Apostles # The ' ' Apostolic Canons ' ' or ' ' Ecclesiastical Canons of the Same Holy Apostles ' ' is a collection of ancient ecclesiastical decrees ( eighty-five in the Eastern , fifty in the Western Church ) concerning the government and discipline of the Early Christian Church , incorporated with the Apostolic Constitutions which are part of the Ante-Nicene Fathers In the fourth century the First Council of Nicaea ( 325 ) calls canons the disciplinary measures of the Church : the term canon , , means in Greek , a rule . There is a very early distinction between the rules enacted by the Church and the legislative measures taken by the State called ' ' leges ' ' , Latin for laws . # Catholic Church # In the Catholic Church , canon law is the system of laws and legal principles made and enforced by the Church 's hierarchical authorities to regulate its external organization and government and to order and direct the activities of Catholics toward the mission of the Church . The Roman Catholic Church canon law also includes the main five rites ( groups ) of churches which are in full union with the Roman Catholic Church and the Supreme Pontiff : # Alexandrian Rite Churches which include the Coptic Catholic Church and Ethiopian Catholic Church . # West Syrian Rite which includes the Maronite Church , Syriac Catholic Church and the Syro-Malankara Church . # Armenian Rite Church which includes the Armenian Catholic Church . # Byzantine Rite Churches which include the Albanian Byzantine Catholic Church , Belarusian Greek Catholic Church , Bulgarian Church , Byzantine Church of Croatia , Serbia and Montenegro , Greek Church , Hungarian Greek Catholic Church , Italo-Albanian Church , Macedonian Greek Catholic Church , Melkite Church , Romanian Church United with Rome , Greek-Catholic , Russian Church , Ruthenian Church , Slovak Greek Catholic Church and Ukrainian Catholic Church . # East Syrian Rite Churches which includes the Chaldean Church and Syro-Malabar Church . All of these church groups are in full communion with the Pope and subject to the ' ' Code of Canons of the Eastern Churches ' ' . In the Roman Church , universal positive ecclesiastical laws , based upon either immutable divine and natural law , or changeable circumstantial and merely positive law , derive formal authority and promulgation from the office of pope , who as Supreme Pontiff possesses the totality of legislative , executive , and judicial power in his person . The actual subject material of the canons is not just doctrinal or moral in nature , but all-encompassing of the human condition . # History , sources of law , and codifications # The Catholic Church has what is claimed to be the oldest continuously functioning internal legal system in Western Europe , much later than Roman law but predating the evolution of modern European civil law traditions . What began with rules ( canons ) adopted by the Apostles at the Council of Jerusalem in the first century has developed into a highly complex legal system encapsulating not just norms of the New Testament , but some elements of the Hebrew ( Old Testament ) , Roman , Visigothic , Saxon , and Celtic legal traditions . The history of Latin canon law can be divided into four periods : the ' ' jus antiquum ' ' , the ' ' jus novum ' ' , the ' ' jus novissimum ' ' and the ' ' Code of Canon Law ' ' . In relation to the Code , history can be divided into the ' ' jus vetus ' ' ( all law before the Code ) and the ' ' jus novum ' ' ( the law of the Code , or ' ' jus codicis ' ' ) . The canon law of the Eastern Catholic Churches , which had developed some different disciplines and practices , underwent its own process of codification , resulting in the Code of Canons of the Eastern Churches promulgated in 1990 by Pope John Paul II . # Catholic canon law as legal system # It is a fully developed legal system , with all the necessary elements : courts , lawyers , judges , a fully articulated legal code principles of legal interpretation , and coercive penalties , though it lacks civilly-binding force in most secular jurisdictions . The academic degrees in canon law are the J.C.B. ( ' ' Juris Canonici Baccalaureatus ' ' , Bachelor of Canon Law , normally taken as a graduate degree ) , J.C.L . ( ' ' Juris Canonici Licentiatus ' ' , Licentiate of Canon Law ) and the J.C.D. ( ' ' Juris Canonici Doctor ' ' , Doctor of Canon Law ) . Because of its specialized nature , advanced degrees in civil law or theology are normal prerequisites for the study of canon law . Much of the legislative style was adapted from the Roman Law Code of Justinian . As a result , Roman ecclesiastical courts tend to follow the Roman Law style of continental Europe with some variation , featuring collegiate panels of judges and an investigative form of proceeding , called inquisitorial , from the Latin inquirere , to enquire . This is in contrast to the adversarial form of proceeding found in the common law system of English and U.S. law , which features such things as juries and single judges . The institutions and practices of canon law paralleled the legal development of much of Europe , and consequently both modern civil law and common law ( legal system ) bear the influences of canon law . Edson Luiz Sampel , a Brazilian expert in canon law , says that canon law is contained in the genesis of various institutes of civil law , such as the law in continental Europe and Latin American countries . Sampel explains that canon law has significant influence in contemporary society . Canonical jurisprudential theory generally follows the principles of Aristotelian-Thomistic legal philosophy . While the term law is never explicitly defined in the Code , the Catechism of the Catholic Church cites Aquinas in defining law as ... an ordinance of reason for the common good , promulgated by the one who is in charge of the community and reformulates it as ... a rule of conduct enacted by competent authority for the sake of the common good . # The Code for the Eastern Churches # The law of the Eastern Catholic Churches in full union with Rome was in much the same state as that of the Latin or Western Church before 1917 ; much more diversity in legislation existed in the various Eastern Catholic Churches . Each had its own special law , in which custom still played an important part . In 1929 Pius XI informed the Eastern Churches of his intention to work out a Code for the whole of the Eastern Church . The publication of these Codes for the Eastern Churches regarding the law of persons was made between 1949 through 1958 but finalized nearly 30 years later . The first Code of Canon Law , 1917 , was mostly for the Roman Rite , with limited application to the Eastern Churches . After the Second Vatican Council , ( 1962 - 1965 ) , another edition was published specifically for the Roman Rite in 1983 . Most recently , 1990 , the Vatican produced the ' ' Code of Canons ' ' of the Eastern Churches which became the 1st code of ' ' Eastern Catholic Canon Law ' ' . # Orthodox Churches # The Greek-speaking Orthodox have collected canons and commentaries upon them in a work known as the ' ' Pdlion ' ' ( Greek : , Rudder ) , so named because it is meant to steer the Church . The Orthodox Christian tradition in general treats its canons more as guidelines than as laws , the bishops adjusting them to cultural and other local circumstances . Some Orthodox canon scholars point out that , had the Ecumenical Councils ( which deliberated in Greek ) meant for the canons to be used as laws , they would have called them ' ' nmoi/ ' ' ( laws ) rather than ' ' kannes/ ' ' ( rules ) , but almost all Orthodox conform to them . The dogmatic decisions of the Councils , though , are to be obeyed rather than to be treated as guidelines , since they are essential for the Church 's unity . # Anglican Communion # In the Church of England , the ecclesiastical courts that formerly decided many matters such as disputes relating to marriage , divorce , wills , and defamation , still have jurisdiction of certain church-related matters ( e.g. discipline of clergy , alteration of church property , and issues related to churchyards ) . Their separate status dates back to the 12th century when the Normans split them off from the mixed secular/religious county and local courts used by the Saxons . In contrast to the other courts of England the law used in ecclesiastical matters is at least partially a civil law system , not common law , although heavily governed by parliamentary statutes . Since the Reformation , ecclesiastical courts in England have been royal courts . The teaching of canon law at the Universities of Oxford and Cambridge was abrogated by Henry VIII ; thereafter practitioners in the ecclesiastical courts were trained in civil law , receiving a Doctor of Civil Law ( D.C.L. ) degree from Oxford , or a Doctor of Laws ( LL.D. ) degree from Cambridge . Such lawyers ( called doctors and civilians ) were centered at Doctors Commons , a few streets south of St Paul 's Cathedral in London , where they monopolized probate , matrimonial , and admiralty cases until their jurisdiction was removed to the common law courts in the mid-19th century . Other churches in the Anglican Communion around the world ( e.g. , the Episcopal Church in the United States , and the Anglican Church of Canada ) still function under their own private systems of canon law . Currently , ( 2004 ) , there are principles of canon law common to the churches within the Anglican Communion ; their existence can be factually established ; each province or church contributes through its own legal system to the principles of canon law common within the Communion ; these principles have a strong persuasive authority and are fundamental to the self-understanding of each of the churches of the Communion ; these principles have a living force , and contain in themselves the possibility of further development ; and the existence of these principles both demonstrates unity and promotes unity within the Anglican Communion . # Presbyterian and Reformed churches # In Presbyterian and Reformed churches , canon law is known as practice and procedure or church order , and includes the church 's laws respecting its government , discipline , legal practice and worship . Roman canon law had been criticized by the Presbyterian as early as 1572 in the Admonition to Parliament . The protest centered around the standard defense that canon law could be retained so long as it did not contradict the civil law . According to Polly Ha , the Reformed Church Government refuted this claiming that the bishops had been enforcing canon law for 1500 years . # Lutheranism # The Book of Concord is the historic doctrinal statement of the Lutheran Church , consisting of ten credal documents recognized as authoritative in Lutheranism since the 16th century . However , the Book of Concord is a confessional document ( stating orthodox belief ) rather than a book of ecclesiastical rules or discipline , like canon law . Each Lutheran national church establishes its own system of church order and discipline , though these are referred to as canons. # The United Methodist Church # The Book of Discipline contains the laws , rules , policies and guidelines for The United Methodist Church . Its last edition was published in 2012
@@10091 Environmental law is a collective term describing international treaties ( conventions ) , statutes , regulations , and common law or national legislation ( where applicable ) that operates to regulate the interaction of humanity and the natural environment , toward the purpose of reducing the impacts of human activity . The topic may be divided into two major subjects : pollution control and remediation , and resource conservation , individual exhaustion . The limitations and expenses that such laws may impose on commerce , and the often unquantifiable ( non-monetized ) benefit of environmental protection , have generated and continue to generate significant controversy . Given the broad scope of environmental law , no fully definitive list of environmental laws is possible . The following discussion and resources give an indication of the breadth of law that falls within the environmental metric . # History # Pure water has been an issue in many antique societies and therefore one can admittedly argue that the first legal rules on environmental issues are pretty old - they are clearly originating from Roman law rules and were also applied in the Middle Ages in Europe . While it is possible to identify early legal structures that would today fall into the environmental law metric - for example the common law recognition of private and public rights to protect interests in land , such as nuisance , or post-industrial revolution human health protections - the concept of environmental law as a separate and distinct body of law is a 20th Century development . The recognition that the natural environment was fragile and in need of special legal protections , the translation of that recognition into legal structures , and the development of those structures into a larger body of environmental law did not occur until about the 1960s . At that time , numerous influences - including a growing awareness of the unity and fragility of the biosphere following mankind 's first steps into outer space ( see , for example , the Blue Marble ) , increased public concern over the impact of industrial activity on natural resources and human health ( see , for example , the 1969 Cuyahoga River fire ) , the increasing strength of the regulatory state , and more broadly the advent and success of environmentalism as a political movement - coalesced to produce a huge new body of law in a relatively short period of time . While the modern history of environmental law is one of continuing controversy , by the end of the 20th Century , environmental law had been established as a component of the legal landscape in all developed nations of the world , many developing ones , and the larger project of international law . # Environmental law by country # This section provides overviews of national environmental law by continent , region , and country . # Africa # According to the International Network for Environmental Compliance and Enforcement ( INECE ) , the major environmental issues in Africa are drought and flooding , air pollution , deforestation , loss of biodiversity , freshwater availability , degradation of soil and vegetation , and widespread poverty . The U.S. Environmental Protection Agency ( EPA ) is focused on the growing urban and industrial pollution , water quality , electronic waste and indoor air from cookstoves . They hope to provide enough aid on concerns regarding pollution before their impacts contaminate the African environment as well as the global environment . By doing so , they intend to protect human health , particularly vulnerable populations such as children and the poor . In order to accomplish these goals in Africa , EPA programs are focused on strengthening the ability to enforce environmental laws as well as public compliance to them . Other programs work on developing stronger environmental laws , regulations , and standards . # # Egypt # # The Environmental Protection Law outlines the responsibilities of the Egyptian government to preparation of draft legislation and decrees pertinent to environmental management , collection of data both nationally and internationally on the state of the environment , preparation of periodical reports and studies on the state of the environment , formulation of the national plan and its projects , preparation of environmental profiles for new and urban areas , and setting of standards to be used in planning for their development , and preparation of an annual report on the state of the environment to be prepared to the President . # # South Africa # # # Americas # # # Brazil # # The Brazilian government created the Ministry of Environment in 1992 in order to develop better strategies of protecting the environment , use natural resources sustainably , and enforce public environmental policies . The Ministry of Environment has authority over policies involving environment , water resources , preservation , and environmental programs involving the Amazon . # # Canada # # The Department of the Environment Act establishes the Department of the Environment ( Canada ) # # Ecuador # # With the enactment of the 2008 Constitution , Ecuador became the first country in the world to codify the Rights of Nature . The Constitution , specifically Articles 10 and 71-74 , recognizes the inalienable rights of ecosystems to exist and flourish , gives people the authority to petition on the behalf of ecosystems , and requires the government to remedy violations of these rights . The rights approach is a break away from traditional environmental regulatory systems , which regard nature as property and legalize and manage degradation of the environment rather than prevent it . The Rights of Nature articles in Ecuador 's constitution are part of a reaction to a combination of political , economic , and social phenomena . Ecuador 's abusive past with the oil industry , most famously the class-action litigation against Chevron , and the failure of an extraction-based economy and neoliberal reforms to bring economic prosperity to the region has resulted in the election of a New Leftist regime , led by President Rafael Correa , and sparked a demand for new approaches to development . In conjunction with this need , the principle of Buen Vivir , or good livingfocused on social , environmental and spiritual wealth versus material wealthgained popularity among citizens and was incorporated into the new constitution . The influence of indigenous groups , from whom the concept of Buen Vivir originates , in the forming of the constitutional ideals also facilitated the incorporation of the Rights of Nature as a basic tenet of their culture and conceptualization of Buen Vivir. # # United States # # Considered in terms of historical precedence and worldwide emulation , the United States has been a world leader in the development and implementation of environmental law . While subject to criticism at home and abroad on issues of protection , enforcement , over-regulation , and imposition of externalities , the country remains an important source of environmental legal expertise and experience . # # Sources # # Laws from every stratum of the laws of the United States pertain to environmental issues . The United States Congress has passed a number of landmark environmental regulatory regimes , but many other federal laws are equally important , if less comprehensive . Concurrently , the legislatures of the fifty states have passed innumerable comparable sets of laws . These state and federal systems are foliated with layer upon layer of administrative regulation . Meanwhile , the U.S. judicial system reviews not only the legislative enactments , but also the administrative decisions of the many agencies dealing with environmental issues . Where the statutes and regulations end , the common law begins . # @2 Federal statutes @2 # # @2 Federal regulation @2 # Consistent with the federal statutes that they administer , U.S. federal agencies promulgate regulations in the Code of Federal Regulations that fill out the broad programs enacted by Congress . Primary among these is Title 40 of the Code of Federal Regulations , containing the regulations of the Environmental Protection Agency . Other import CFR sections include Title 10 ( energy ) , Title 18 ( Conservation of Power and Water Resources ) , Title 21 ( Food and Drugs ) , Title 33 ( Navigable Waters ) , Title 36 ( Parks , Forests and Public Property ) , Title 43 ( Public Lands : Interior ) and Title 50 ( Wildlife and Fisheries ) . # @2 Judicial decisions @2 # The federal and state judiciaries have played an important role in the development of environmental law in the United States , in many cases resolving significant controversy regarding the application of federal environmental laws in favor of environmental interests . The decisions of the Supreme Court in cases such as Calvert Cliffs Coordinating Committee v. U.S. Atomic Energy Commission ( broadly reading the procedural requirements of the National Environmental Policy Act ) , Tennessee Valley Authority v. Hill ( broadly reading the Endangered Species Act ) , and , much more recently , Massachusetts v. EPA ( requiring EPA to reconsider regulation of greenhouse gases under the Clean Air Act ) have had policy impacts far beyond the facts of the particular case . # @2 Common law @2 # The common law of tort is an important tool for the resolution of environmental disputes that fall beyond the confines of regulated activity . Prior to the modern proliferation of environmental regulation , the doctrines of nuisance ( public or private ) , trespass , negligence , and strict liability apportioned harm and assigned liability for activities that today would be considered pollution and likely governed by regulatory regimes . These doctrines remain relevant , and most recently have been used by plaintiffs seeking to impose liability for the consequences of global climate change . The common law also continues to play a leading role in American water law , in the doctrines of riparian rights and prior appropriation. # # Administration # # In the United States , responsibilities for the administration of environmental laws are divided between numerous federal and state agencies with varying , overlapping and sometimes conflicting missions . The U.S. Environmental Protection Agency ( EPA ) is the most well-known federal agency , with jurisdiction over many of the country 's national air , water and waste and hazardous substance programs . Other federal agencies , such as the U.S. Fish and Wildlife Service and National Park Service pursue primarily conservation missions , while still others , such as the United States Forest Service and the Bureau of Land Management , tend to focus more on beneficial use of natural resources . Federal agencies operate within the limits of federal jurisdiction . For example , EPA 's jurisdiction under the Clean Water Act is limited to waters of the United States . Furthermore in many cases federal laws allow for more stringent regulation by states , and of transfer of certain federally mandated responsibilities from federal to state control . U.S. state governments , therefore , administering state law adopted under state police powers or federal law by delegation , uniformly include environmental agencies . The extent to which state environmental laws are based on or depart from federal law varies from jurisdiction to jurisdiction . Thus , while a permit to fill non-federal wetlands might require a permit from a single state agency , larger and more complex endeavorsfor example , the construction of a coal-fired power plantmight require approvals from numerous federal and state agencies . # # Enforcement # # In the United States , violations of environmental laws are generally civil offenses , resulting in monetary penalties and , perhaps , civil sanctions such as injunction . Many environmental laws also provide for criminal penalties for egregious violations . Environmental agencies often include separate enforcement offices , with duties including monitoring permitted activities , performing compliance inspections , issuing citations and prosecuting wrongdoing ( civilly or criminally , depending on the violation ) . EPA 's Office of Enforcement and Compliance Assurance is one such agency . Others , such as the United States Park Police , carry out more traditional law enforcement activities . Adjudicatory proceedings for environmental violations are often handled by the agencies themselves under the structures of administrative law . In some cases , appeals are also handled internally ( for example , EPA 's Environmental Appeals Board ) . Generally , final agency determinations may subsequently be appealed to the appropriate court . Other environmental law enforcement agencies include : ' ' Fora Verde ' ' , a branch of the Brazilian Armed Forces which was established decades ago to protect against environmental crimes . Green Police , an environmental task force in New Jersey . Veteran Environmental Patrol of Israel started fielding uniformed officers in 2001. # # Education and training # # Environmental law courses are offered as elective courses in the second and third years of JD study at many American law schools . Curricula vary : an introductory course might focus on the big five federal statutesNEPA , CAA , CWA , CERCLA and RCRA ( or FIFRA ) and may be offered in conjunction with a natural resources law course . Smaller seminars may be offered on more focused topics . Some U.S. law schools also offer an LLM or JSD specialization in environmental law . Additionally , several law schools host legal clinics that focus on environmental law , providing students with an opportunity to learn about environmental law in the context of real world disputes involving actual clients . U.S. News & World Report has consistently ranked Vermont Law School , Lewis & Clark Law School , and Pace University School of Law as the top three Environmental Law programs in the United States , with Lewis & Clark and Vermont frequently trading the top spot . Many American law schools host student-published law journals . The environmental law reviews at Yale , Harvard , Stanford , Columbia , NYU and Lewis & Clark Law School are regularly the most-cited such publications . International environmental lawyers often receive specialized training in the form of an LL.M. degree at U.S. institutions , after having a first law degree often in another country from where they got their first law degree . # Asia # The Asian Environmental Compliance and Enforcement Network ( AECEN ) is an agreement between 16 Asian countries dedicated to improving cooperation with environmental laws in Asia . These countries include Cambodia , China , Indonesia , India , Maldives , Japan , Korea , Malaysia , Nepal , Philippines , Pakistan , Singapore , Sri Lanka , Thailand , Vietnam , and Lao PDR. # # China # # According to the U.S. Environmental Protection Agency , China has been working with great determination in recent years to develop , implement , and enforce a solid environmental law framework . Chinese officials face critical challenges in effectively implementing the laws , clarifying the roles of their national and provincial governments , and strengthening the operation of their legal system . Explosive economic and industrial growth in China has led to significant environmental degradation , and China is currently in the process of developing more stringent legal controls . The harmonization of Chinese society and the natural environment is billed as one of the country 's top national priorities . # # India # # In India , Environmental law is governed by the . This act is enforced by the Central Pollution Control Board and the numerous State Pollution Control Boards . Apart from this , there are also individual legislations specifically enacted for the protection of Water , Air , Wildlife , etc . Such legislations include the Water ( Prevention and Control of Pollution ) Act , 1974 ; the Water ( Prevention and Control of Pollution ) Cess Act , 1977 ; the Forest ( Conservation ) Act , 1980 ; the Air ( Prevention and Control of Pollution ) Act , 1981 ; The Biological Diversity Act , 2002 and the Wild Life Protection Act , 1972 . The National Green Tribunal established under the has jurisdiction over all environmental cases dealing with a substantial environmental question and acts covered under the Water ( Prevention and Control of Pollution ) Act , 1974 ; the Water ( Prevention and Control of Pollution ) Cess Act , 1977 ; the Forest ( Conservation ) Act , 1980 ; the Air ( Prevention and Control of Pollution ) Act , 1981 ; the Public Liability Insurance Act , 1991 and the Biological Diversity Act , 2002 . The acts covered under do not fall within the jurisdiction of the National Green Tribunal . Appeals can be filed in the Hon'ble Supreme Court of India . # # Japan # # The Basic Environmental Law is the basic structure of Japans environmental policies replacing the Basic Law for Environmental Pollution Control and the Nature Conservation Law . The updated law aims to address global environmental problems , urban pollution by everyday life , loss of accessible natural environment in urban areas and degrading environmental protection capacity in forests and farmlands . The three basic environmental principles that the Basic Environmental Law follows are the blessings of the environment should be enjoyed by the present generation and succeeded to the future generations , a sustainable society should be created where environmental loads by human activities are minimized , and Japan should contribute actively to global environmental conservation through international cooperation . From these principles , the Japanese government have established policies such as environmental consideration in policy formulation , establishment of the Basic Environment Plan which describes the directions of long-term environmental policy , environmental impact assessment for development projects , economic measures to encourage activities for reducing environmental load , improvement of social infrastructure such as sewerage system , transport facilities etc. , promotion of environmental activities by corporations , citizens and NGOs , environmental education , and provision of information , promotion of science and technology . # # Middle East # # The U.S. Environmental Protection Agency is working with countries in the Middle East to improve environmental governance , water pollution and water security , clean fuels and vehicles , public participation , and pollution prevention. # # Vietnam # # Vietnam is currently working with the U.S. Environmental Protection Agency on dioxin remediation and technical assistance in order to lower methane emissions . On March 2002 , the U.S and Vietnam signed the U.S.-Vietnam Memorandum of Understanding on Research on Human Health and the Environmental Effects of Agent Orange/Dioxin. # Europe # # # European Union # # The European Union issues secondary legislation on environmental issues that are valid throughout the EU ( so called regulations ) and many directives that must be implemented into national legislation from the 28 member states ( national states ) . Examples are the Regulation ( EC ) No. 338/97 on the implementation of CITES or the Directive 92/43/EEC on Fauna-Flora-Habitat . EU legislation is ruled in Article 249 Treaty for the Functioning of the European Union ( TFEU ) . Topics for common EU legislation are : Climate change Air pollution Water protection and management Waste management Soil protection Protection of nature , species and biodiversity Noise pollution Cooperation for the environment with third countries ( other than EU member states ) Civil protection # # Russia # # The Ministry of Natural Resources and Environment of the Russian Federation makes regulation regarding conservation of natural resources , including the subsoil , water bodies , forests located in designated conservation areas , fauna and their habitat , in the field of hunting , hydrometeorology and related areas , environmental monitoring and pollution control , including radiation monitoring and control , and functions of public environmental policy making and implementation and statutory regulation . # Oceania # The main concerns on environmental issues in the Oceanic Region are illegal releases of air and water pollutants , illegal logging/timber trade , illegal shipment of hazardous wastes , including e-waste and ships slated for destruction , and insufficient institutional structure/lack of enforcement capacity . The Secretariat of the Pacific Regional Environmental Programme ( SPREP ) is an international organization between Australia , the Cook Islands , FMS , Fiji , France , Kiribati , Marshall Islands , Nauru , New Zealand , Niue , Palau , PNG , Samoa , Solomon Island , Tonga , Tuvalu , USA , and Vanuatu . The SPREP was established in order to provide assistance in improving and protecting the environment as well as assure sustainable development for future generations . # # Australia # # The Environment Protection and Biodiversity Conservation Act 1999 is the center piece of environmental legislation in the Australian Government . It sets up the legal framework to protect and manage nationally and internationally important flora , fauna , ecological communities and heritage places . It also focuses on protecting world heritage properties , national heritage properties , wetlands of international importance , nationally threatened species and ecological communities , migratory species , Commonwealth marine areas , Great Barrier Reef Marine Park , and the environment surrounding nuclear activities . # # New Zealand # # The Ministry for the Environment and Office of the Parliamentary Commissioner for the Environment were established by the Environment Act 1986 . These positions are responsible for advising the Minister on all areas of environmental legislation . A common theme of New Zealands environmental legislation is sustainably managing natural and physical resources , fisheries , and forests . The Resource Management Act 1991 is the main piece of environmental legislation that outlines the governments strategy to managing the environment , including air , water soil , biodiversity , the coastal environment , noise , subdivision , and land use planning in general. # Environmental treaties # Pollution , scarce resources , wild animals and plants do not respect political boundaries , making treaties an important aspect of environmental law . Numerous legally binding international agreements now encompass a wide variety of issue-areas , from terrestrial , marine and atmospheric pollution through to wildlife and biodiversity protection . While the bodies that proposed , argued , agreed upon and ultimately adopted existing international agreements vary according to each agreement , certain conferences , including 1972 's United Nations Conference on the Human Environment , 1983 's World Commission on Environment and Development , 1992 's United Nations Conference on Environment and Development and 2002 's World Summit on Sustainable Development have been particularly important . # Organizing principles # International environmental law 's development has included the statement and adoption of a number of important guiding principles . As with all international law , international environmental law brings up questions of sovereignty , legal reciprocity ( comity ) and even perhaps the Golden Rule . Other guiding principles include the polluter pays principle , the precautionary principle , the principle of sustainable development , environmental procedural rights , common but differentiated responsibilities , intragenerational and intergenerational equity , common concern of humankind , and common heritage . # Sources # # # Treaties , protocols , conventions , etc. # # Protocols are subsidiary agreements built from a primary treaty . They exist in many areas of international law but are especially useful in the environmental field , where they may be used to regularly incorporate recent scientific knowledge . They also permit countries to reach agreement on a framework that would be contentious if every detail were to be agreed upon in advance . The most widely known protocol in international environmental law is the Kyoto Protocol , which followed from the United Nations Framework Convention on Climate Change . # # Organizations , institutions , bodies , etc. # # Multilateral environmental agreements are sometimes creating an International Organization , Institution or Body that implements the agreement . Major examples are the Convention on International Trade in Endangered Species of Wild Fauna and Flora ( CITES ) and the International Union for Conservation of Nature ( IUCN ) . # # Customary international law # # Customary international law is an important source of international environmental law . These are the norms and rules that countries follow as a matter of custom and they are so prevalent that they bind all states in the world . When a principle becomes customary law is not clear cut and many arguments are put forward by states not wishing to be bound . Examples of customary international law relevant to the environment include the duty to warn other states promptly about icons of an environmental nature and environmental damages to which another state or states may be exposed , and Principle 21 of the Stockholm Declaration ( ' good neighbourliness ' or sic utere ) . # # International judicial decisions # # International environmental law also includes the opinions of international courts and tribunals . While there are few and they have limited authority , the decisions carry much weight with legal commentators and are quite influential on the development of international environmental law . One of the biggest challenges in international decisions is to determine an adequate compensation for environmental damages . The courts include : the International Court of Justice ( ICJ ) ; the international Tribunal for the Law of the Sea ( ITLOS ) ; the European Court of Justice ; European Court of Human Rights and other regional treaty tribunals . Arguably the World Trade Organisation 's Dispute Settlement Board ( DSB ) is getting a say on environmental law also . Important cases have included : Trail smelter arbitration , 33 AJIL ( 1939 ) Nuclear weapons testing cases , such as between New Zealand and France before the International Court of Justice ; Gabcikovo-Nagymaros Dam Case , ICJ Rep ( 1997 ) # Administration and enforcement # # Education and training # The IUCN Academy of Environmental Law is a network of some 60 law schools worldwide that specialize in the research and teaching of environmental law . # Controversy # Environmental law is often the source of controversy . Notably , the early history of national environmental regulation in the United States ( at the time the world leader in environmental regulation ) was marked by relative political unity . The National Environmental Policy Act ( 1969 ) , the Clean Air Act ( 1970 ) , the Clean Water Act ( 1972 ) , and the Endangered Species Act ( 1973 ) all were enacted with broad bipartisan support , and ultimately signed into law by Republican President Richard Nixon . Even then , however , critics raised concerns regarding the need for such laws and the costs involved in implementing them . Richard Nixon himself initially vetoed the Clean Water Act , citing its projected costs , though he was ultimately overridden by Congress . Debates over the necessity , fairness , cost , and need for environmental regulation continue to this day . # Necessity # The necessity of directly regulating a particular activity due to the activity 's environmental consequences is often a subject of debate . These debates may be scientific . For example , scientific uncertainty fuels the ongoing debate over greenhouse gas regulation and is a major factor in the debate over whether to ban pesticides. # Cost # It is very common for regulated industry to argue against environmental regulation on the basis of cost . Indeed , in the U.S. estimates of the environmental regulation 's total costs reach 2% of GDP , and any new regulation will arguably contribute in some way to that burden . Difficulties arise , however , in performing cost-benefit analysis . The value of a healthy ecosystem is not easily quantified , nor the value of clean air , species diversity , etc . Furthermore environmental issues may gain an ethical or moral dimension that would discount cost . # Effectiveness # Environmental interests will often criticize environmental regulation as inadequately protective of the environment . Furthermore , strong environmental laws do not guarantee strong enforcement . Nonetheless ; the cost benefit analysis for society at large , between having laws that protect citizens from toxic or dangerous living and work conditions ( such as those that existed in the early industrial 1900 's ) clearly comes down on the side of regulation . # See also # List of environmental laws by country International environmental law International Environmental Law Research Centre United Nations Environment Programme # References # # Notes # # Further reading # Aydar Akhatov Faure , Michael , and Niels Philipsen , eds. ( 2014 ) . ' ' Environmental Law & European Law ' ' . The Hague : Eleven International Publishing . 142 pp . ISBN 9789462360754
@@10905 Family law is an area of the law that deals with family-related matters and domestic relations , including : marriage , civil unions , and domestic partnerships ; adoption and surrogacy child abuse and child abduction the termination of relationships and ancillary matters , including divorce , annulment , property settlements , alimony , child custody and visitation , child support and alimony awards . juvenile adjudication paternity testing and paternity fraud This list is not exhaustive and varies depending on jurisdiction . In many jurisdictions in the United States , the family courts see the most crowded dockets . Litigants representative of all social and economic classes are parties within the system . For the conflict of laws elements dealing with transnational and interstate issues , see marriage ( conflict ) , divorce ( conflict ) and nullity ( conflict ) . # See also # Alimony California Child Actor 's Bill , or the Coogan Law Merger doctrine ( family law ) Paternity fraud Supervised visitation ; Specific jurisdictions : Algerian Family Code Family Court of Australia * Australian family law Family Law Act ( Alberta , Canada ) Family law system in England and Wales * Children Act of 1989 Malian Family Code Mudawana , the Moroccan Family Code The Philippines ' Family Code of 1987 Nashim , the order of the Mishnah outlining Jewish family law # Further reading # Sorge , J. & Scurlock , J. ( 2014 ) . , book and video . Vaious works by Professor Carol Smart .
@@14831 Public international law concerns the structure and conduct of sovereign states ; analogous entities , such as the Holy See ; and intergovernmental organizations . To a lesser degree , international law also may affect multinational corporations and individuals , an impact increasingly evolving beyond domestic legal interpretation and enforcement . Public international law has increased in use and importance vastly over the twentieth century , due to the increase in global trade , environmental deterioration on a worldwide scale , awareness of human rights violations , rapid and vast increases in international transportation and a boom in global communications . The field of study combines two main branches : the law of nations ( ' ' jus gentium ' ' ) and international agreements and conventions ( ' ' jus inter gentes ' ' ) . Public international law is usually distinguished from private international law , which concerns the resolution of conflict of laws . In its most general sense , international law consists of rules and principles of general application dealing with the conduct of states and of intergovernmental organizations and with their relations ' ' inter se ' ' , as well as with some of their relations with persons , whether natural or juridical . # History # Beginning with the Peace of Westphalia in 1648 , the 17th , 18th and 19th centuries saw the growth of the concept of the sovereign nation-state , which consisted of a nation controlled by a centralized system of government . The concept of nationalism became increasingly important as people began to see themselves as citizens of a particular nation with a distinct national identity . Until the mid-19th century , relations between nation-states were dictated by treaty , agreements to behave in a certain way towards another state , unenforceable except by force , and not binding except as matters of honor and faithfulness . But treaties alone became increasingly toothless and wars became increasingly destructive , most markedly towards civilians , and civilized peoples decried their horrors , leading to calls for regulation of the acts of states , especially in times of war . Perhaps the first instrument of modern public international law was the Lieber Code , passed in 1863 by the Congress of the United States , to govern the conduct of US forces during the United States Civil War and considered to be the first written recitation of the rules and articles of war , adhered to by all civilized nations , the precursor of public international law . Part of the Code follows : # Military necessity , as understood by modern civilized nations , consists in the necessity of those measures which are indispensable for securing the ends of the war , and which are lawful according to the modern law and usages of war . Military necessity admits of all direct destruction of life or limb of armed enemies , and of other persons whose destruction is incidentally unavoidable in the armed contests of the war ; it allows of the capturing of every armed enemy , and every enemy of importance to the hostile government , or of peculiar danger to the captor ; it allows of all destruction of property , and obstruction of the ways and channels of traffic , travel , or communication , and of all withholding of sustenance or means of life from the enemy ; of the appropriation of whatever an enemy 's country affords necessary for the subsistence and safety of the Army , and of such deception as does not involve the breaking of good faith either positively pledged , regarding agreements entered into during the war , or supposed by the modern law of war to exist . ( ... But ... ) Men who take up arms against one another in public war do not cease on this account to be moral beings , responsible to one another and to God . Military necessity does not admit of crueltythat is , the infliction of suffering for the sake of suffering or for revenge , nor of maiming or wounding except in fight , nor of torture to extort confessions . It does not admit of the use of poison in any way , nor of the wanton devastation of a district . It admits of deception , but disclaims acts of perfidy ; and , in general , military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult . # This first statement of the previously uncodified rules and articles of war led to the first prosecution for war crimesin the case of United States prisoners of war held in cruel and depraved conditions at Andersonville , Georgia , in which the Confederate commandant of that camp was tried and hanged , the only Confederate soldier to be punished by death in the aftermath of the entire Civil War . In the years that followed , other states subscribed to limitations of their conduct , and numerous other treaties and bodies were created to regulate the conduct of states towards one another in terms of these treaties , including , but not limited to , the Permanent Court of Arbitration in 1899 ; the Hague and Geneva Conventions , the first of which was passed in 1864 ; the International Court of Justice in 1921 ; the Genocide Convention ; and the International Criminal Court , in the late 1990s . Because international law is a relatively new area of law its development and propriety in applicable areas are often subject to dispute . # International relations # Under article 38 of the Statute of the International Court of Justice , public international law has three principal sources : international treaties , custom , and general principles of law . In addition , judicial decisions and teachings may be applied as subsidiary means for the determination of rules of law . International treaty law comprises obligations states expressly and voluntarily accept between themselves in treaties . Customary international law is derived from the consistent practice of States accompanied by ' ' opinio juris ' ' , i.e. the conviction of States that the consistent practice is required by a legal obligation . Judgments of international tribunals as well as scholarly works have traditionally been looked to as persuasive sources for custom in addition to direct evidence of state behavior . Attempts to codify customary international law picked up momentum after the Second World War with the formation of the International Law Commission ( ILC ) , under the aegis of the United Nations . Codified customary law is made the binding interpretation of the underlying custom by agreement through treaty . For states not party to such treaties , the work of the ILC may still be accepted as custom applying to those states . General principles of law are those commonly recognized by the major legal systems of the world . Certain norms of international law achieve the binding force of peremptory norms ( ' ' jus cogens ' ' ) as to include all states with no permissible derogations. ' ' Colombia v Per ' ' 1950 , recognising custom as a source of international law , but a practice of giving asylum was not part of it . ' ' Belgium v Spain ' ' 1970 , only the state where a corporation is incorporated ( not where its major shareholders reside ) has standing to bring an action for damages for economic loss . # Treaties # Where there are disputes about the exact meaning and application of national laws , it is the responsibility of the courts to decide what the law means . In international law interpretation is within the domain of the protagonists , but may also be conferred on judicial bodies such as the International Court of Justice , by the terms of the treaties or by consent of the parties . It is generally the responsibility of states to interpret the law for themselves , but the processes of diplomacy and availability of supra-national judicial organs operate routinely to provide assistance to that end . Insofar as treaties are concerned , the Vienna Convention on the Law of Treaties writes on the topic of interpretation that : : A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose . ( article 31(1) This is actually a compromise between three different theories of interpretation : The textual approach , a restrictive interpretation , which bases itself on the ordinary meaning of the text ; that approach assigns considerable weight to the actual text . The subjective approach , which takes into consideration i. the idea behind the treaty , ii . treaties in their context , and iii . what the writers intended when they wrote the text . A third approach , which bases itself on interpretation in the light of its object and purpose , i.e. the interpretation that best suits the goal of the treaty , also called effective interpretation . These are general rules of interpretation ; specific rules might exist in specific areas of international law . ' ' Greece v United Kingdom ' ' 1952 , ICJ had no jurisdiction to hear a dispute between the UK government and a private Greek businessman under the terms of a treaty . ' ' United Kingdom v Iran ' ' 1952 , the ICJ did not have jurisdiction for a dispute over the Anglo-Iranian Oil Co. being nationalised . ' ' Oil Platforms case ( Islamic Republic of Iran v United States of America ) ' ' 2003 , rejected dispute over damage to ships which hit a mine . # Statehood and responsibility # Public international law establishes the framework and the criteria for identifying states as the principal actors in the international legal system . As the existence of a state presupposes control and jurisdiction over territory , international law deals with the acquisition of territory , state immunity and the legal responsibility of states in their conduct with each other . International law is similarly concerned with the treatment of individuals within state boundaries . There is thus a comprehensive regime dealing with group rights , the treatment of aliens , the rights of refugees , international crimes , nationality problems , and human rights generally . It further includes the important functions of the maintenance of international peace and security , arms control , the pacific settlement of disputes and the regulation of the use of force in international relations . Even when the law is not able to stop the outbreak of war , it has developed principles to govern the conduct of hostilities and the treatment of prisoners . International law is also used to govern issues relating to the global environment , the global commons such as international waters and outer space , global communications , and world trade . In theory all states are sovereign and equal . As a result of the notion of sovereignty , the value and authority of international law is dependent upon the voluntary participation of states in its formulation , observance , and enforcement . Although there may be exceptions , it is thought by many international academics that most states enter into legal commitments with other states out of enlightened self-interest rather than adherence to a body of law that is higher than their own . As D. W. Greig notes , international law can not exist in isolation from the political factors operating in the sphere of international relations . Traditionally , sovereign states and the Holy See were the sole subjects of international law . With the proliferation of international organizations over the last century , they have in some cases been recognized as relevant parties as well . Recent interpretations of international human rights law , international humanitarian law , and international trade law ( e.g. , North American Free Trade Agreement ( NAFTA ) Chapter 11 actions ) have been inclusive of corporations , and even of certain individuals . The conflict between international law and national sovereignty is subject to vigorous debate and dispute in academia , diplomacy , and politics . Certainly , there is a growing trend toward judging a state 's domestic actions in the light of international law and standards . Numerous people now view the nation-state as the primary unit of international affairs , and believe that only states may choose to voluntarily enter into commitments under international law , and that they have the right to follow their own counsel when it comes to interpretation of their commitments . Certain scholars and political leaders feel that these modern developments endanger nation states by taking power away from state governments and ceding it to international bodies such as the U.N . and the World Bank , argue that international law has evolved to a point where it exists separately from the mere consent of states , and discern a legislative and judicial process to international law that parallels such processes within domestic law . This especially occurs when states violate or deviate from the expected standards of conduct adhered to by all civilized nations . A number of states place emphasis on the principle of territorial sovereignty , thus seeing states as having free rein over their internal affairs . Other states oppose this view . One group of opponents of this point of view , including many European nations , maintain that all civilized nations have certain norms of conduct expected of them , including the prohibition of genocide , slavery and the slave trade , wars of aggression , torture , and piracy , and that violation of these universal norms represents a crime , not only against the individual victims , but against humanity as a whole . States and individuals who subscribe to this view opine that , in the case of the individual responsible for violation of international law , he is become , like the pirate and the slave trader before him , hostis humani generis , an enemy of all mankind , and thus subject to prosecution in a fair trial before any fundamentally just tribunal , through the exercise of universal jurisdiction . Though the European democracies tend to support broad , universalistic interpretations of international law , many other democracies have differing views on international law . Several democracies , including India , Israel and the United States , take a flexible , eclectic approach , recognizing aspects of public international law such as territorial rights as universal , regarding other aspects as arising from treaty or custom , and viewing certain aspects as not being subjects of public international law at all . Democracies in the developing world , due to their past colonial histories , often insist on non-interference in their internal affairs , particularly regarding human rights standards or their peculiar institutions , but often strongly support international law at the bilateral and multilateral levels , such as in the United Nations , and especially regarding the use of force , disarmament obligations , and the terms of the UN Charter . ' ' Case Concerning United States Diplomatic and Consular Staff in Tehran ' ' 1980 ' ' Democratic Republic of the Congo v Belgium ' ' 2002 # Territory and the sea # Territorial dispute ' ' Libya v Chad ' ' 1994 ' ' United Kingdom v Norway ' ' 1951 , the Fisheries case , concerning the limits of Norway 's jurisdiction over neighbouring waters ' ' Peru v Chile ' ' ( 2014 ) dispute over international waters . ' ' Bakassi case ' ' 2002 , between Nigeria and Cameroon ' ' Burkina Faso-Niger frontier dispute case ' ' ( 2013 ) United Nations Convention on the Law of the Sea ' ' Corfu Channel Case ' ' 1949 , UK sues Albania for damage to ships in international waters . First ICJ decision . ' ' France v United Kingdom ' ' 1953 ' ' Germany v Denmark and the Netherlands ' ' 1969 , successful claim for a greater share of the North Sea continental shelf by Germany . The ICJ held that the matter ought to be settled , not according to strict legal rules , but through applying equitable principles . ' ' Case concerning maritime delimitation in the Black Sea ( Romania v Ukraine ) ' ' 2009 # International organisations # United Nations World Trade Organisation International Labour Organisation NATO European Union G7 and G20 # Social and economic policy # ' ' Netherlands v Sweden ' ' 1958 , Sweden had jurisdiction over its guardianship policy , meaning that its laws overrode a conflicting guardianship order of the Netherlands . ' ' Liechtenstein v Guatemala ' ' 1955 , the recognition of Mr Nottebohm 's nationality , connected to diplomatic protection . ' ' Italy v France , United Kingdom and United States ' ' 1954 # Human rights # Universal Declaration of Human Rights ' ' CroatiaSerbia genocide case ' ' ( 2014 ) ongoing claims over genocide. ' ' Bosnia and Herzegovina v Serbia and Montenegro ' ' 2007 # Labour law # International Labour Organization ILO Conventions Declaration of Philadelphia of 1944 Declaration on Fundamental Principles and Rights at Work of 1998 United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families the Convention on the Elimination of All Forms of Racial Discrimination 1965 Convention on the Elimination of All Forms of Discrimination Against Women 1981 ) ; the Convention on the Rights of Persons with Disabilities 2008 # Development and finance # Bretton Woods Conference World Bank International Monetary Fund # Environmental law # Kyoto Protocol # Trade # World Trade Organization # Conflict and force # # War and armed conflict # ' ' Nicaragua v. United States ' ' 1986 ' ' International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons ' ' # Humanitarian law # First Geneva Convention of 1949 , Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field , ( first adopted in 1864 ) Second Geneva Convention of 1949 , Amelioration of the Condition of Wounded , Sick and Shipwrecked Members of Armed Forces at Sea ( first adopted in 1906 ) Third Geneva Convention of 1949 , Treatment of Prisoners of War , adopted in 1929 , following from the Hague Conventions of 1899 and 1907. Prisoner of war Fourth Geneva Convention of 1949 , Protection of Civilian Persons in Time of War . # International criminal law # # Courts and enforcement # Since international law has no established compulsory judicial system for the settlement of disputes or a coercive penal system , it is not as straightforward as managing breaches within a domestic legal system . However , there are means by which breaches are brought to the attention of the international community and some means for resolution . For example , there are judicial or quasi-judicial tribunals in international law in certain areas such as trade and human rights . The formation of the United Nations , for example , created a means for the world community to enforce international law upon members that violate its charter through the Security Council . Since international law exists in a legal environment without an overarching sovereign ( i.e. , an external power able and willing to compel compliance with international norms ) , enforcement of international law is very different from in the domestic context . In many cases , enforcement takes on Coasian characteristics , where the norm is self-enforcing . In other cases , defection from the norm can pose a real risk , particularly if the international environment is changing . When this happens , and if enough states ( or enough powerful states ) continually ignore a particular aspect of international law , the norm may actually change according to concepts of customary international law . For example , prior to World War I , unrestricted submarine warfare was considered a violation of international law and ostensibly the casus belli for the United States ' declaration of war against Germany . By World War II , however , the practice was so widespread that during the Nuremberg trials , the charges against German Admiral Karl Dnitz for ordering unrestricted submarine warfare were dropped , notwithstanding that the activity constituted a clear violation of the Second London Naval Treaty of 1936. # Domestic enforcement # Apart from a state 's natural inclination to uphold certain norms , the force of international law comes from the pressure that states put upon one another to behave consistently and to honor their obligations . As with any system of law , many violations of international law obligations are overlooked . If addressed , it may be through diplomacy and the consequences upon an offending state 's reputation , submission to international judicial determination , arbitration , sanctions or force including war . Though violations may be common in fact , states try to avoid the appearance of having disregarded international obligations . States may also unilaterally adopt sanctions against one another such as the severance of economic or diplomatic ties , or through reciprocal action . In some cases , domestic courts may render judgment against a foreign state ( the realm of private international law ) for an injury , though this is a complicated area of law where international law intersects with domestic law . It is implicit in the Westphalian system of nation-states , and explicitly recognized under Article 51 of the Charter of the United Nations , that all states have the inherent right to individual and collective self-defense if an armed attack occurs against them . Article 51 of the UN Charter guarantees the right of states to defend themselves until ( and unless ) the Security Council takes measures to keep the peace . # International bodies # Violations of the UN Charter by members of the United Nations may be raised by the aggrieved state in the General Assembly for debate . The General Assembly can not make binding resolutions , only ' recommendations ' , but through its adoption of the Uniting for Peace resolution ( A/RES/377 A ) , of 3 November 1950 , the Assembly declared that it has the power to authorize the use of force , under the terms of the UN Charter , in cases of breaches of the peace or acts of aggression , provided that the Security Council , owing to the negative vote of a permanent member , fails to act to address the situation . The Assembly also declared , by its adoption of resolution 377 A , that it could call for other collective measures -- such as economic and diplomatic sanctions -- in situations constituting the milder threat to the Peace . The Uniting for Peace resolution was initiated by the United States in 1950 , shortly after the outbreak of the Korean War , as a means of circumventing possible future Soviet vetoes in the Security Council . The legal significance of the resolution is unclear , given that the General Assembly can not issue binding resolutions . However , it was never argued by the Joint Seven-Powers that put forward the draft resolution , during the corresponding discussions , that it in any way afforded the Assembly new powers . Instead , they argued that the resolution simply declared what the Assembly 's powers already were , according to the UN Charter , in the case of a dead-locked Security Council . The Soviet Union was the only permanent member of the Security Council to vote against the Charter interpretations that were made law by the Assembly 's adoption of resolution 377 A. Alleged violations of the Charter can also be raised by states in the Security Council . The Security Council could subsequently pass resolutions under Chapter VI of the UN Charter to recommend the Pacific Resolution of Disputes . Such resolutions are not binding under international law , though they usually are expressive of the Council 's convictions . In rare cases , the Security Council can adopt resolutions under Chapter VII of the UN Charter , related to threats to Peace , Breaches of the Peace and Acts of Aggression , which are legally binding under international law , and can be followed up with economic sanctions , military action , and similar uses of force through the auspices of the United Nations . It has been argued that resolutions passed outside of Chapter VII can also be binding ; the legal basis for that is the Council 's broad powers under Article 24(2) , which states that in discharging these duties ( exercise of primary responsibility in international peace and security ) , it shall act in accordance with the Purposes and Principles of the United Nations . The mandatory nature of such resolutions was upheld by the International Court of Justice ( ICJ ) in its advisory opinion on Namibia . The binding nature of such resolutions can be deduced from an interpretation of their language and intent . States can also , upon mutual consent , submit disputes for arbitration by the International Court of Justice , located in The Hague , Netherlands . The judgments given by the Court in these cases are binding , although it possesses no means to enforce its rulings . The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request . Some of the advisory cases brought before the court have been controversial with respect to the court 's competence and jurisdiction . Often enormously complicated matters , ICJ cases ( of which there have been less than 150 since the court was created from the Permanent Court of International Justice in 1945 ) can stretch on for years and generally involve thousands of pages of pleadings , evidence , and the world 's leading specialist public international lawyers . As of June 2009 , there are 15 cases pending at the ICJ . Decisions made through other means of arbitration may be binding or non-binding depending on the nature of the arbitration agreement , whereas decisions resulting from contentious cases argued before the ICJ are always binding on the involved states . Though states ( or increasingly , international organizations ) are usually the only ones with standing to address a violation of international law , some treaties , such as the International Covenant on Civil and Political Rights have an optional protocol that allows individuals who have had their rights violated by member states to petition the international Human Rights Committee . Investment treaties commonly and routinely provide for enforcement by individuals or investing entities . and commercial agreements of foreigners with sovereign governments may be enforced on the international plane . # International legal theory # International legal theory comprises a variety of theoretical and methodological approaches used to explain and analyse the content , formation and effectiveness of public international law and institutions and to suggest improvements . Some approaches center on the question of compliance : why states follow international norms in the absence of a coercitive power that ensures compliance . Other approaches focus on the problem of the formation of international rules : why states voluntarily adopt international law norms , that limit their freedom of action , in the absence of a world legislature ; while other perspectives are policy oriented : they elaborate theoretical frameworks and instruments to criticize the existing norms and to make suggestions on how to improve them . Some of these approaches are based on domestic legal theory , some are interdisciplinary , and others have been developed expressly to analyse international law . Classical approaches to International legal theory are the Natural law , the Eclectic and the Legal positivism schools of thought . The natural law approach argues that international norms should be based on axiomatic truths . 16th century natural law writer , Francisco de Vitoria , a professor of theology at the University of Salamanca , examined the questions of the just war , the Spanish authority in the Americas , and the rights of the Native American peoples . In 1625 Hugo Grotius argued that nations as well as persons ought to be governed by universal principle based on morality and divine justice while the relations among polities ought to be governed by the law of peoples , the ' ' jus gentium ' ' , established by the consent of the community of nations on the basis of the principle of ' ' pacta sunt servanda ' ' , that is , on the basis of the observance of commitments . On his part , Emmerich de Vattel argued instead for the equality of states as articulated by 18th century natural law and suggested that the law of nations was composed of custom and law on the one hand , and natural law on the other . During the 17th century , the basic tenets of the Grotian or eclectic school , especially the doctrines of legal equality , territorial sovereignty , and independence of states , became the fundamental principles of the European political and legal system and were enshrined in the 1648 Peace of Westphalia . The early positivist school emphasized the importance of custom and treaties as sources of international law . 16th century Alberico Gentili used historical examples to posit that positive law ( ' ' jus voluntarium ' ' ) was determined by general consent . Cornelius van Bynkershoek asserted that the bases of international law were customs and treaties commonly consented to by various states , while John Jacob Moser emphasized the importance of state practice in international law . The positivism school narrowed the range of international practice that might qualify as law , favouring rationality over morality and ethics . The 1815 Congress of Vienna marked the formal recognition of the political and international legal system based on the conditions of Europe . Modern legal positivists consider international law as a unified system of rules that emanates from the states ' will . International law , as it is , is an objective reality that needs to be distinguished from law as it should be . Classic positivism demands rigorous tests for legal validity and it deems irrelevant all extralegal arguments .
@@18486 Law enforcement broadly refers to any system by which some members of society act in an organized manner to enforce the law by discovering , deterring , rehabilitating or punishing persons who violate the rules and norms governing that society . Although the term may encompass entities such as courts and prisons , it is most frequently applied to those who directly engage in patrols or surveillance to dissuade and discover criminal activity , and those who investigate crimes and apprehend offenders . Furthermore , although law enforcement may be most concerned with the prevention and punishment of crimes , organizations exist to discourage a wide variety of non-criminal violations of rules and norms , effected through the imposition of less severe consequences . # Organizations # Most law enforcement is conducted by some type of law enforcement agency , with the most typical agency fulfilling this role being the police . Societal investment in enforcement through such organizations can be massive , both in terms of the resources invested in the activity , and in the number of people professionally engaged to perform those functions . Law enforcement agencies tend to be limited to operating within a specified jurisdiction . In some cases , jurisdiction may overlap between organizations ; for example , in the United States , each state has its own statewide law enforcement arms , but the Federal Bureau of Investigation is able to act against certain types of crimes occurring in any state . Various specialized segments of society may have their own internal law enforcement arrangements . For example , military organizations may have military police . Social control capabilities have increased significantly over the past several decades , particularly because of an increased utilization of technologically advanced surveillance methods . Following the September 11 attacks , the United States Congress and the George W. Bush administration granted law enforcement considerable powers in the enforcement and prevention of terrorism-related crime . Collectively labeled as the War on Terror , the scope of such laws , policies and directives are challenged by civil rights organizations and numerous legislators for lack of definitional precision , arbitrary application of sanctions , and violation of privacy laws . One of federal law enforcement 's surveillance tools is Project Carnivore , a U.S. Department of Justice Internet surveillance program that is administered by the Federal Bureau of Investigation to access information flowing to and from a central processing unit on a network connection . While , theoretically relying on Michel Foucaults theory of discipline and governmentality , as well as related insights in the social control literature , this paper examines Project Carnivore relative to the larger context of state rationality and related privacy issues .
@@18657 Labour law ( also labor law or employment law ) mediates the relationship between workers ( employees ) , employers , trade unions and the government . Collective labour law relates to the tripartite relationship between employee , employer and union . Individual labour law concerns employees ' rights at work and through the contract for work . are social norms ( in some cases also technical standards ) for the minimum socially acceptable conditions under which employees or contractors are allowed to work . Government agencies ( such as the former U.S. Employment Standards Administration ) enforce labour law ( legislative , regulatory , or judicial ) . # History # Labour law arose in parallel with the Industrial Revolution as the relationship between worker and employer changed from small-scale production studios to large-scale factories . Workers sought better conditions and the right to join ( or avoid joining ) a labour union , while employers sought a more predictable , flexible and less costly workforce . The state of labour law at any one time is therefore both the product of , and a component of struggles between various social forces . As England was the first country to industrialise , it was also the first to face the often appalling consequences of capitalist exploitation in a totally unregulated and ' ' laissez-faire ' ' economic framework . Over the course of the late 18th and early to mid-19th century the foundation for modern labour law was slowly laid , as some of the more egregious aspects of working conditions were steadily ameliorated through legislation . This was largely achieved through the concerted pressure from social reformers , notably Anthony Ashley-Cooper , 7th Earl of Shaftesbury , and others . # Child labour # A serious outbreak of fever in 1784 in cotton mills near Manchester drew widespread public opinion against the use of children in dangerous conditions . A local inquiry presided over by Dr Thomas Percival , was instituted by the justices of the peace for Lancashire , and the resulting report recommended the limitation of children 's working hours . In 1802 , the first major piece of labour legislation was passed the Health and Morals of Apprentices Act . This was the first , albeit modest , step towards the protection of labour . The act limited working hours to twelve a day and abolished night work . It required the provision of a basic level of education for all apprentices , as well as adequate sleeping accommodation and clothing . The rapid industrialisation of manufacturing at the turn of the 19th century led to a rapid increase in child employment , and public opinion was steadily made aware of the terrible conditions these children were forced to endure . The Factory Act of 1819 was the outcome of the efforts of the industrialist Robert Owen and prohibited child labour under nine years of age and limited the working day to twelve . A great milestone in labour law was reached with the Factory Act of 1833 , which limited the employment of children under eighteen years of age , prohibited all night work and , crucially , provided for inspectors to enforce the law . Pivotal in the campaigning for and the securing of this legislation were Michael Sadler and the Earl of Shaftesbury . This act was an important step forward , in that it mandated skilled inspection of workplaces and a rigorous enforcement of the law by an independent governmental body . A lengthy campaign to limit the working day to ten hours was led by Shaftesbury , and included support from the Anglican Church . Many committees were formed in support of the cause and some previously established groups lent their support as well . The campaign finally led to the passage of the Factory Act of 1847 , which restricted the working hours of women and children in British factories to effectively 10 hours per day . # Working conditions # These early efforts were principally aimed at limiting child labour . From the mid-19th century , attention was first paid to the plight of working conditions for the workforce in general . In 1850 , systematic reporting of fatal accidents was made compulsory , and basic safeguards for health , life and limb in the mines were put in place from 1855 . Further regulations , relating to ventilation , fencing of disused shafts , signalling standards , and proper gauges and valves for steam-boilers and related machinery were also set down . A series of further Acts , in 1860 and 1872 extended the legal provisions and strengthened safety provisions . Steady development of the coal industry , increasing association among miners , and increased scientific knowledge paved the way for the Coal Mines Act of 1872 , which extended the legislation to similar industries . The same Act included the first comprehensive code of regulation to govern legal safeguards for health , life and limb . The presence of a more certified and competent management and increased levels of inspection were also provided for . By the end of the century , a comprehensive set of regulations was in place in England that affected all industries . A similar system ( with certain national differences ) was implemented in other industrializing countries in the latter part of the 19th century and the early 20th century . # Individual labour law # # Employment terms # The basic feature of labour law in almost every country is that the rights and obligations of the worker and the employer are mediated through a contract of employment between the two . This has been the case since the collapse of feudalism . Many contract terms and conditions are covered by legislation or common law . In the US for example , the majority of State law ( United States ) One example of employment terms in many countries is the duty to provide written particulars of employment with the ' ' essentialia negotii ' ' ( Latin for essential terms ) to an employee . This aims to allow the employee to know concretely what to expect and what is expected . It covers items including compensation , holiday and illness rights , notice in the event of dismissal and job description . The contract is subject to various legal provisions . An employer may not legally offer a contract that pays the worker less than a minimum wage . An employee may not agree to a contract that allows an employer to Wrongful dismissal # Minimum wage # Many jurisdictions define the minimum amount that a worker can be paid per hour . Australia , Belgium , Brazil , Canada , China , France , Greece , Hungary , India , Ireland , Japan , South Korea , Luxembourg , the Netherlands , New Zealand , Paraguay , Portugal , Poland , Romania , Spain , Taiwan , the United Kingdom , the United States , Vietnam and others have laws of this kind . The minimum wage is set usually higher than the lowest wage as determined by the forces of supply and demand in a free market and therefore acts as a price floor . Each country sets its own minimum wage laws and regulations , and while a majority of industrialised countries has a minimum wage , many developing countries do not . Minimum wages are regulated and stipulated in some countries that lack explicit laws . In Sweden minimum wages are negotiated between the labour market parties ( unions and employer organisations ) through collective agreements that also cover non-union workers and non-organised employers . National minimum wage laws were first introduced in the United States in 1938 , Brazil in 1940 India in 1948 , France in 1950 and in the and the United Kingdom in 1998 . In the European Union , 18 out of 25 member states have national minimum wages as of 2011. # Living wage # The living wage is higher than the minimum wage and is designed that a full-time worker would be able to support themselves and a small family at that wage . # Hours # The maximum number of hours worked per day or other time interval are set by law in many countries . Such laws also control whether workers who work longer hours must be paid additional compensation . Before the Industrial Revolution , the workday varied between 11 and 14 hours . With the growth of industrialism and the introduction of machinery , longer hours became far more common , reaching as high as 16 hours per day . The eight-hour movement led to the first law on the length of a working day , passed in 1833 in England . It limited miners to 12 hours and children to 8 hours . The 10-hour day was established in 1848 , and shorter hours with the same pay were gradually accepted thereafter . The 1802 Factory Act was the first labour law in the UK . Germany was the next European country to pass labour laws ; Chancellor Otto von Bismarck 's main goal was to undermine the Social Democratic Party of Germany . In 1878 , Bismarck instituted a variety of anti-socialist measures , but despite this , socialists continued gaining seats in the Reichstag ( German Empire ) In France , the first labour law was voted in 1841 . It limited under-age miners ' hours . In the Third Republic labour law was first effectively enforced , in particular after Waldeck-Rousseau 1884 law legalising trade unions . With the Matignon Accords , the Popular Front ( 193638 ) enacted the laws mandating 12 days each year of paid vacations for workers and the law limiting the standard workweek to 40 hours . # Health and safety # Other labour laws involve safety concerning workers . The earliest English factory law was passed in 1802 and dealt with the safety and health of child textile workers . # Discrimination # Such laws prohibited discrimination against employees as morally unacceptable and illegal , in particular racial discrimination or gender discrimination . # Dismissal # Convention no. 158 of the International Labour Organization states that an employee ca n't be fired without any legitimate motive and before offering him the possibility to defend himself . Thus , on April 28 , 2006 , after the unofficial repeal of the French First Employment Contract , the Longjumeau ( Essonne ) ' ' conseil des prud'hommes ' ' ( labour law court ) judged the New Employment Contract contrary to international law and therefore illegitimate and without any juridical value . The court considered that the two-years period of fire at will ( without any legal motive ) was unreasonable , and contrary to convention . # Child labour # Child labour was not seen as a problem throughout most of history , only disputed with the beginning of universal schooling and the concepts of labourers ' and children 's rights . Use of child labour was commonplace , often in factories . In England and Scotland in 1788 , about two-thirds of persons working in water-powered textile factories were children . Child labour can be factory work , mining or quarrying , agriculture , helping in the parents ' business , operating a small business ( such as selling food ) , or doing odd jobs . Children work as guides for tourists , sometimes combined with bringing in business for shops and restaurants ( where they may also work ) . Other children do jobs such as assembling boxes or polishing shoes . However , rather than in factories and sweatshops , most child labour in the twenty-first century occurs in the informal sector , selling on the street , at work in agriculture or hidden away in houses far from the reach of official inspectors and from media scrutiny . # Collective labour law # Collective labour law concerns the relationship between employer , employee and trade unions . Trade unions ( also labor unions in the US ) are organisations which generally aim to promote the interests of their members . # Trade unions # Trade unions are organized groups of workers who engage in collective bargaining with employers . Some countries require unions and/or employers to follow particular procedures in pursuit of their goals . For example , some countries require that unions poll the membership to approve a strike or to approve using members ' dues for political projects . Laws may govern the circumstances and procedures under which unions are formed . They may guarantee the right to join a union ( banning employer discrimination ) , or remain silent in this respect . Some legal codes allow unions to obligate their members , such as the requirement to comply with a majority decision in a strike vote . Some restrict this , such as right to work legislation in parts of the United States . # Workplace participation # A legally binding right for workers as a group to participate in workplace management is acknowledged in some form in most developed countries . In a majority of EU member states ( for example , Germany , Sweden , and France ) the workforce has a right to elect directors on the board of large corporations . This is usually called codetermination and currently most countries allow for the election of one third of the board , though the workforce can have the right to elect anywhere from a single director , to just under a half in Germany . However , German company law uses a split board system , in which a supervisory board appoints an executive board . Under the Mitbestimmunggesetz 1976 , shareholders and employees elect the supervisory board in equal numbers , but the head of the supervisory board with a casting vote is a shareholder representative . The first statutes to introduce board level codetermination were in Britain , however most of these measures , except in universities , were removed in 1948 and 1979 . The oldest surviving statute is found in the United States , in the Massachusetts Laws on manufacturing corporations , introduced in 1919 , however this was always voluntary . In the United Kingdom , similar proposals were drawn up , and a command paper produced named the Bullock Report ( Industrial democracy ) was released in 1977 by the James Callaghan Labour Party government . Unions would have directly elected half of the board . An independent element would also be added . However , the proposal was not enacted . The European Commission offered proposals for worker participation in the fifth company law directive , which was also not implemented . In Sweden , participation is regulated through the Law on board representation . The law covers all private companies with 25 or more employees . In these companies , workers ( usually through unions ) have a right to appoint two board members and two substitutes . If the company has more than 1,000 employees , this rises to three members and three substitutes . It is common practice to allocate them among the major union coalitions. # Information and consultation # Workplace statutes in many countries require that employers consult their workers on various issues . # Collective bargaining # # Collective action # Strike action is the worker tactic most associated with industrial disputes . In most countries , strikes are legal under a circumscribed set of conditions . Among them may be that : The strike is decided on by a prescribed democratic process ( wildcat strikes are illegal ) . Sympathy strikes , against a company by which workers are not directly employed , may be prohibited . General strikes may be forbidden for example , among public safety workers , to maintain public order . A boycott is a refusal to buy , sell , or otherwise trade with an individual or business . Other tactics include go-slow , sabotage , work-to-rule , sit-in or en-masse not reporting to work . Some labour law explicitly bans such activity , none explicitly allows it . Picketing is often used by workers during strikes . They may congregate near the business they are striking against to make their presence felt , increase worker participation and dissuade ( or prevent ) strike breakers from entering the workplace . In many countries , this activity is restricted by law , by more general law restricting demonstrations , or by injunctions on particular pickets . For example , labour law may restrict secondary picketing ( picketing a business connected with the company not directly with the dispute , such as a supplier ) , or flying pickets ( mobile strikers who travel to join a picket ) . Laws may prohibit obstructing others from conducting lawful business ; outlaw obstructive pickets allow court orders to restrict picketing locations or behaving in particular ways ( shouting abuse , for example ) . # International labour law # The labour movement has long been concerned that economic globalisation would weaken worker bargaining power , as their employers could hire workers abroad to avoid domestic labour standards . Karl Marx said : The International Labour Organization and the World Trade Organization have been a primary focus among international bodies for regulating labour markets . Conflicts arise when people work in more than one country . EU law has a growing body of workplace rules . # International Labour Organization # Following World War One , the Treaty of Versailles contained the first constitution of a new International Labour Organization ( ILO ) founded on the principle that labour is not a commodity , and for the reason that peace can be established only if it is based upon social justice . ILO 's primary role has been to coordinate international labour law by issuing Conventions . ILO members can voluntarily adopt and ratify the Conventions . For instance , the first Hours of Work ( Industry ) Convention , 1919 required a maximum of a 48 hour week , and has been ratified by 52 out of 185 member states . The UK ultimately refused to ratify the Convention , as did many current EU members , although the Working Time Directive adopts its principles , subject to individual opt-out . ILO 's constitution comes from the 1944 Declaration of Philadelphia and under the 1998 Declaration on Fundamental Principles and Rights at Work classified eight conventions as core . These require freedom to join a union , bargain collectively and take action ( Conventions No. 87 and 98 ) , abolition of forced labour ( 29 and 105 ) , abolition of labour by children before the end of compulsory school ( 138 and 182 ) , and no discrimination at work ( No. 100 and 111 ) . Member compliance with the core Conventions is obligatory , even if the country has not ratified the Convention in question . To ensure compliance , the ILO is limited to gathering evidence and reporting on member states ' progress , relying on publicity to create pressure to reform . Global reports on core standards are produced yearly , while individual reports on countries who have ratified other Conventions are compiled on a bi-annual or less frequent basis . # World Trade Organization # Because the ILO 's enforcement mechanisms are weak , incorporating labour standards in the World Trade Organization 's ( WTO ) operation has been proposed . WTO oversees , primarily , the General Agreement on Tariffs and Trade treaty aimed at reducing customs , tariffs and other barriers to import and export of goods , services and capital between its 157 member countries . Unlike for the ILO , contravening WTO rules as recognized by the dispute settlement procedures opens a country to retaliation through trade sanctions . This could include reinstatement of targeted tariffs against the offender . Proponents have called for a social clause to be inserted into the GATT agreements , for example , by amending Article XX , which provides an exception that allows imposition of sanctions for breaches of human rights . An explicit reference to core labour standards could allow comparable action where a WTO member state breaches ILO standards . Opponents argue that such an approach could undermine labour rights , because industries , and therefore workforces could be harmed with no guarantee of reform . Furthermore it was argued in the 1996 Singapore Ministerial Declaration 1996 that the comparative advantage of countries , particularly low-age developing countries , must in now way be put into question . Some countries want to take advantage of low wages and fewer rules as a comparative advantage to boost their economies . Another contested point is whether business moves production from high wage to low wage countries , given potential differences in worker productivity . Since GATT , most trade agreements have been bilateral . Some of these protect core labour standards . Moreover , in domestic tariff regulations , some countries give preference to countries that respect core labour rights , for example under the EC Tariff Preference Regulation , articles 7 and 8. # Work in multiple countries # Conflicts of laws ( or private international law ) issues arise where workers work in multiple jurisdictions . If a US worker performs part of her job in Brazil , China and Denmark ( a peripatetic worker ) an employer may seek to characterise the employment contract as governed by the law of the country where labour rights are least favourable to the worker , or seek to argue that the most favourable system of labour rights does not apply . For example , in a UK labour law case , ' ' Ravat v Halliburton Manufacturing and Services Ltd ' ' workers have employment rights of the country where they habitually work . They may have a claim in another country if they can establish a close connection to it . The Regulation emphasises that the rules should be applied with the purpose of protecting the worker . It is also necessary that a court has jurisdiction to hear a claim . Under the Brussels I Regulation article 19 , this requires the worker habitually works in the place where the claim is brought , or is engaged there . # EU law # The European Union has extensive labour laws that officially exclude ( according to the Treaty on the Functioning of the European Union ) matters around direct wage regulation ( e.g. setting a minimum wage ) , fairness of dismissals and collective bargaining . A series of Directives regulate almost all other issues , for instance the Working Time Directive guarantees 28 days of paid holiday , the Equality Framework Directive prohibits all forms of discrimination and the Collective Redundancies Directive requires that proper notice is given and consultation takes place on decisions about economic dismissals . However , the European Court of Justice has recently extended the Treaties provisions via case law . Trade unions have sought to organise across borders in the same way that multinational corporations have organised production globally . Unions have sought to take collective action and strikes internationally . However , this coordination was challenged in the European Union in two controversial decisions . In ' ' Laval Ltd v Swedish Builders Union ' ' a group of Latvian workers were sent to a construction site in Sweden . The local union took industrial action to make Laval Ltd sign up to the local collective bargaining agreement . Under the Posted Workers Directive , article 3 lays down minimum standards for foreign workers so that workers receive at least the minimum rights that they would have in their home country in case their place of work has lower minimum rights . Article 3(7) says that this shall not prevent application of terms and conditions of employment which are more favourable to workers . Most people thought this meant that more favourable conditions could be given than the minimum ( e.g. , in Latvian law ) by the host state 's legislation or a collective agreement . However the Europen Court of Justice ( ECJ ) said that only the local state could raise standards beyond its minimum for foreign workers . Any attempt by the host state , or a collective agreement ( unless the collective agreement is declared universal under article 3(8) would infringe the business ' freedom under TFEU article 56 . This decision was implicitly reversed by the European Union legislature in the Rome I Regulation , which makes clear in recital 34 that the host state may allow more favourable standards . However , in ' ' The Rosella ' ' , the ECJ held that a blockade by the International Transport Workers Federation against a business that was using an Estonian flag of convenience ( i.e. , saying it was operating under Estonian law to avoid labour standards of Finland ) infringed the business ' right of free establishment under TFEU article 49 . The ECJ said that it recognised the workers ' right to strike in accordance with ILO Convention 87 , but said that its use must be proportionately to the right of the business ' establishment . # National labour laws # # Canada # In Canadian law , labour law refers to matters connected with unionised workplaces , while employment law deals with non-unionised employees . # China # In the People 's Republic of China the basic labour laws are the Labour Law of People 's Republic of China ( promulgated on 5 July 1994 ) and the Law of the People 's Republic of China on Employment Contracts ( adopted at the 28th Session of the Standing Committee of the 10th National People 's Congress on June 29 , 2007 , effective from January 1 , 2008 ) . The administrative regulations enacted by the State Council , the ministerial rules and the judicial explanations of the Supreme People 's Court stipulate detailed rules concerning various aspects of employment . The government-controlled All China Federation of Trade Unions is the sole legal labour union . Strikes are formally legal , but in practice are discouraged . # France # In France , the first labour laws were Waldeck Rousseau 's laws passed in 1884 . Between 1936 and 1938 the Popular Front enacted a law mandating 12 days ( 2 weeks ) each year of paid vacation for workers , and a law limited the work week to 40 hours , excluding overtime . The Grenelle accords negotiated on May 25 and 26th in the middle of the May 1968 crisis , reduced the working week to 44 hours and created trade union sections in each enterprise . The minimum wage was increased by 25% . In 2000 , Lionel Jospin 's government enacted the 35-hour workweek , reduced from 39 hours . Five years later , conservative prime minister Dominique de Villepin enacted the New Employment Contract ( CNE ) . Addressing the demands of employers asking for more flexibility in French labour laws , the CNE sparked criticism from trade unions and opponents claiming it favoured contingent work . In 2006 , he then attempted to pass the First Employment Contract ( CPE ) through a vote by emergency procedure , but that was met by students and unions ' protests . President Jacques Chirac finally had no choice but to repeal it . # India # Over fifty national and many more state-level laws govern work in India . So for instance , a permanent worker can be terminated only for proven misconduct or habitual absence . In the Uttam Nakate case , the Bombay High Court held that dismissing an employee for repeated sleeping on the factory floor was illegal the decision was overturned by the Supreme Court of India two decades later . In 2008 , the World Bank criticised the complexity , lack of modernisation and flexibility in Indian regulations . # Iran # Iran has not ratified the two basic Conventions of the International Labour Organization on freedom of association and collective bargaining and one abolishing child labour . # Mexico # Mexican labour law reflects the historic interrelation between the state and the Confederation of Mexican Workers . The confederation is officially aligned with the Institutional Revolutionary Party ( the Institutional Revolutionary Party , or PRI ) . While the law promises workers the right to strike and to organize , in practice it is difficult or impossible for independent unions to organize . # Sweden # In Sweden many workplace issues such as working hours , minimum wage and right to overtime compensation are regulated through collective bargaining agreements in accordance with the Swedish model of ' ' self-regulation ' ' , i.e. regulation by the labour market parties themselves in contrast to ' ' state regulation ' ' ( labour laws ) . # Switzerland # The labor law of Switzerland covers all standards governing the employment of some kind . The regulation of the employment by private employers is largely harmonized at the federal level , while public-sector employment still prevails a variety of cantonal laws . In particular , the civil standardization is distributed to a variety of laws . Of greater importance , particularly the new Federal Constitution of 1999 , the Code of Obligations , the Labour Code as well as in the public sector , the Federal Personnel Act . # United Kingdom # The Factory Acts ( first one in 1802 , then 1833 ) and the 1832 Master and Servant Act were the first laws regulating labour relations in the United Kingdom . Most employment law before 1960 was based upon the Law of Contract . Since then there has been a significant expansion primarily due to the equality movement and the European Union . Laws are either Acts of Parliament called Statutes , Statutory Regulations ( made by a Secretary of State under an Act of Parliament ) or Case Law ( developed by various courts ) . The first significant expansion was the Equal Pay Act of 1970 . This act was introduced to bring about equality for women in the workplace . Since 1997 , changes in UK employment law include enhanced maternity and paternity rights , the introduction of a National Minimum Wage and the Working Time Directive , which covers working time , rest breaks and the right to paid annual leave . Discrimination law has been tightened , with protection from discrimination now available on the grounds of age , religion or belief and sexual orientation as well as gender , race and disability . # United States # The Fair Labor Standards Act of 1938 set the maximum standard work week to 44 hours . In 1950 this was reduced to 40 hours . A green card entitles immigrants to work , without requirement a separate work permit . Despite the 40-hour standard maximum work week , some lines of work require more than 40 hours . For example , farm workers may work over 72 hours a week , followed by at least 24 hours off . Exceptions to the break period exist for certain harvesting employees , such as those involved in harvesting grapes , tree fruits and cotton . Professionals , clerical ( administrative assistants ) , technical , and mechanical employees can not be terminated for refusing to work more than 72 hours in a work week . These ceilings , combined with a competitive job market , often motivate American workers to work more hours . American workers on average take the fewest days off of any developed country . The Fifth and Fourteenth Amendments of the United States Constitution limit the power of the federal and state governments to discriminate . The private sector is not directly constrained by the Constitution , but several laws , particularly the Civil Rights Act of 1964 , limit the private sector discrimination against certain groups . The Fifth Amendment has an explicit requirement that the Federal Government not deprive individuals of life , liberty , or property , without due process of law and an implicit guarantee that each person receive equal protection of the law . The Fourteenth Amendment explicitly prohibits states from violating an individual 's rights of due process and equal protection . Equal protection limits the State and Federal governments ' power to discriminate in their employment practices by treating employees , former employees , or job applicants unequally because of membership in a group , like a race , religion or sex . Due process protection requires that employees have a fair procedural process before they are terminated if the termination is related to a liberty , like the right to free speech , or a property interest . The National Labor Relations Act , enacted in 1935 as part of the New Deal legislation , guarantees workers the right to form unions and engage in collective bargaining . The Age Discrimination in Employment Act of 1967 prohibits employment discrimination based on age with respect to employees 40 years of age or older . Title VII of the Civil Rights Act is the principal federal statute with regard to employment discrimination , prohibiting unlawful employment discrimination by public and private employers , labour organizations , training programmes and employment agencies based on race or colour , religion , sex and national origin . Retaliation is also prohibited by Title VII against any person for opposing any practice forbidden by statute , or for making a charge , testifying , assisting , or participating in a proceeding under the statute . The Civil Rights Act of 1991 expanded the damages available to Title VII cases and granted Title VII plaintiffs the right to jury trial .
@@22063 Natural law , or the law of nature ( ) , is a system of law that is determined by nature , and so is universal . Classically , natural law refers to the use of reason to analyze human nature both social and personal and deduce binding rules of moral behavior from it . Natural law is often contrasted with the positive law of a given political community , society , or state . In legal theory , on the other hand , the interpretation of positive law requires some reference to natural law . On this understanding of natural law , natural law can be invoked to criticize judicial decisions about what the law says but not to criticize the best interpretation of the law itself . Some scholars use natural law synonymously with natural justice or natural right ( Latin ' ' ius naturale ' ' ) , while others distinguish between natural law and natural right . Although natural law is often conflated with common law , the two are distinct in that natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature , while common law is the legal tradition whereby certain rights or values are legally cognizable by virtue of judicial recognition or articulation . Natural law theories have , however , exercised a profound influence on the development of English common law , and have featured greatly in the philosophies of Thomas Aquinas , Francisco Surez , Richard Hooker , Thomas Hobbes , Hugo Grotius , Samuel von Pufendorf , John Locke , Francis Hutcheson , Jean Jacques Burlamaqui , and Emmerich de Vattel . Because of the intersection between natural law and natural rights , it has been cited as a component in the United States Declaration of Independence and the Constitution of the United States , as well as in the Declaration of the Rights of Man and of the Citizen . Declarationism states that the founding of the United States is based on Natural law . # History # The use of natural law , in its various incarnations , has varied widely through its history . There are a number of different theories of natural law , differing from each other with respect to the role that morality plays in determining the authority of legal norms . This article deals with its usages separately rather than attempt to unify them into a single theory . # Plato # Although Plato does not have an explicit theory of natural law ( he almost never uses the phrase natural law except in ' ' Gorgias ' ' 484 and ' ' Timaeus ' ' 83e ) , his concept of nature , according to John Wild , contains some of the elements found in many natural law theories . According to Plato we live in an orderly universe . At the basis of this orderly universe or nature are the forms , most fundamentally the Form of the Good , which Plato describes as the brightest region of Being . The Form of the Good is the cause of all things and when it is seen it leads a person to act wisely . In the ' ' Symposium ' ' , the Good is closely identified with the Beautiful . Also in the ' ' Symposium ' ' , Plato describes how the experience of the Beautiful by Socrates enables him to resist the temptations of wealth and sex . In the ' ' Republic ' ' , the ideal community is , ... a city which would be established in accordance with nature . # Aristotle # Greek philosophy emphasized the distinction between nature ( ' ' physis ' ' , ' ' ' ' ) on the one hand and law , custom , or convention ( ' ' nomos ' ' , ' ' ' ' ) on the other . What the law commanded varied from place to place , but what was by nature should be the same everywhere . A law of nature would therefore have had the flavor more of a paradox than something that obviously existed . Against the conventionalism that the distinction between nature and custom could engender , Socrates and his philosophic heirs , Plato and Aristotle , posited the existence of natural justice or natural right ( ' ' dikaion physikon ' ' , ' ' ' ' , Latin ' ' ius naturale ' ' ) . Of these , Aristotle is often said to be the father of natural law . Aristotle 's association with natural law may be due to the interpretation given to his works by Thomas Aquinas . But whether Aquinas correctly read Aristotle is a disputed question . According to some , Aquinas conflates the natural law and natural right , the latter of which Aristotle posits in Book V of the ' ' Nicomachean Ethics ' ' ( Book IV of the ' ' Eudemian Ethics ' ' ) . According to this interpretation , Aquinas 's influence was such as to affect a number of early translations of these passages in an unfortunate manner , though more recent translations render them more literally . Aristotle notes that natural justice is a species of political justice , viz. the scheme of distributive and corrective justice that would be established under the best political community ; were this to take the form of law , this could be called a natural law , though Aristotle does not discuss this and suggests in the ' ' Politics ' ' that the best regime may not rule by law at all . The best evidence of Aristotle 's having thought there was a natural law comes from the ' ' Rhetoric ' ' , where Aristotle notes that , aside from the particular laws that each people has set up for itself , there is a common law that is according to nature . Specifically , he quotes Sophocles and Empedocles : # Universal law is the law of Nature . For there really is , as every one to some extent divines , a natural justice and injustice that is binding on all men , even on those who have no association or covenant with each other . It is this that Sophocles ' Antigone clearly means when she says that the burial of Polyneices was a just act in spite of the prohibition : she means that it was just by nature : Not of to-day or yesterday it is , But lives eternal : none can date its birth . And so Empedocles , when he bids us kill no living creature , says that doing this is not just for some people while unjust for others : Nay , but , an all-embracing law , through the realms of the sky Unbroken it stretcheth , and over the earth 's immensity . # Some critics believe that the context of this remark suggests only that Aristotle advised that it could be rhetorically advantageous to appeal to such a law , especially when the particular law of one 's own city was averse to the case being made , not that there actually was such a law ; Moreover , they claim that Aristotle considered two of the three candidates for a universally valid , natural law provided in this passage to be wrong . Aristotle 's theoretical paternity of the natural law tradition is consequently disputed . # Stoic natural law # The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics . The rise of natural law as a universal system coincided with the rise of large empires and kingdoms in the Greek world . Whereas the higher law Aristotle suggested one could appeal to was emphatically natural , in contradistinction to being the result of divine positive legislation , the Stoic natural law was indifferent to the divine or natural source of the law : the Stoics asserted the existence of a rational and purposeful order to the universe ( a divine or eternal law ) , and the means by which a rational being lived in accordance with this order was the natural law , which spelled out action that accorded with virtue . As the English historian A. J. Carlyle ( 18611943 ) notes : # There is no change in political theory so startling in its completeness as the change from the theory of Aristotle to the later philosophical view represented by Cicero and Seneca ... We think that this can not be better exemplified than with regard to the theory of the equality of human nature . Charles H. McIlwain likewise observes that the idea of the equality of men is the profoundest contribution of the Stoics to political thought and that its greatest influence is in the changed conception of law that in part resulted from it . # Natural law first appeared among the stoics who believed that God is everywhere and in everyone . Within humans is a divine spark which helps them to live in accordance with nature . The stoics felt that there was a way in which the universe had been designed and natural law helped us to harmonise with this . # Cicero # Cicero wrote in his De Legibus that both justice and law derive their origin from what nature has given to man , from what the human mind embraces , from the function of man , and from what serves to unite humanity . For Cicero , natural law obliges us to contribute to the general good of the larger society . The purpose of positive laws is to provide for the safety of citizens , the preservation of states , and the tranquility and happiness of human life . In this view , wicked and unjust statutes are anything but ' laws , ' because in the very definition of the term ' law ' there inheres the idea and principle of choosing what is just and true . Law , for Cicero , ought to be a reformer of vice and an incentive to virtue . Cicero expressed the view that the virtues which we ought to cultivate , always tend to our own happiness , and that the best means of promoting them consists in living with men in that perfect union and charity which are cemented by mutual benefits . Cicero influenced the discussion of natural law for many centuries to come , up through the era of the American Revolution . The jurisprudence of the Roman Empire was rooted in Cicero , who held an extraordinary grip .. upon the imagination of posterity as the medium for the propagation of those ideas which informed the law and institutions of the empire . Cicero 's conception of natural law found its way to later centuries notably through the writings of Saint Isidore of Seville and the Decretum of Gratian . Thomas Aquinas , in his summary of medieval natural law , quoted Cicero 's statement that nature and custom were the sources of a society 's laws . The Renaissance Florentine chancellor Leonardo Bruni praised Cicero as the man who carried philosophy from Greece to Italy , and nourished it with the golden river of his eloquence . The legal culture of Elizabethan England , exemplified by Sir Edward Coke , was steeped in Ciceronian rhetoric . The Scottish moral philosopher Francis Hutcheson , as a student at Glasgow , was attracted most by Cicero , for whom he always professed the greatest admiration . More generally in eighteenth-century Great Britain , Cicero 's name was a household word among educated people . Likewise , in the admiration of early Americans Cicero took pride of place as orator , political theorist , stylist , and moralist . The British polemicist Thomas Gordon incorporated Cicero into the radical ideological tradition that travelled from the mother country to the colonies in the course of the eighteenth century and decisively shaped early American political culture . Cicero 's description of the immutable , eternal , and universal natural law was quoted by Burlamaqui and later by the American revolutionary legal scholar James Wilson . Cicero became John Adams 's foremost model of public service , republican virtue , and forensic eloquence . Adams wrote of Cicero that as all the ages of the world have not produced a greater statesman and philosopher united in the same character , his authority should have great weight . Thomas Jefferson first encountered Cicero as a schoolboy learning Latin , and continued to read his letters and discourses as long as he lived . He admired him as a patriot , valued his opinions as a moral philosopher , and there is little doubt that he looked upon Cicero 's life , with his love of study and aristocratic country life , as a model for his own . Jefferson described Cicero as the father of eloquence and philosophy . Some early Church Fathers , especially those in the West , sought to incorporate natural law into Christianity . The most notable among these was Augustine of Hippo , who equated natural law with man 's prelapsarian state ; as such , a life according to nature was no longer possible and men needed instead to seek salvation through the divine law and grace of Jesus Christ . In the twelfth century , Gratian equated the natural law with divine law . A century later , St. Thomas Aquinas in his ' ' Summa Theologica ' ' I-II qq. 90106 , restored Natural Law to its independent state , asserting natural law as the rational creature 's participation in the eternal law . Yet , since human reason could not fully comprehend the Eternal law , it needed to be supplemented by revealed Divine law . ( See also Biblical law in Christianity . ) Meanwhile , Aquinas taught that all human or positive laws were to be judged by their conformity to the natural law . An unjust law is not a law , in the full sense of the word . It retains merely the ' appearance ' of law insofar as it is duly constituted and enforced in the same way a just law is , but is itself a ' perversion of law . ' At this point , the natural law was not only used to pass judgment on the moral worth of various laws , but also to determine what the law said in the first place . This principle laid the seed for possible societal tension with reference to tyrants . The natural law was inherently teleological and deontological in that although it is aimed at goodness , it is entirely focused on the ethicalness of actions , rather than the consequence . The specific content of the natural law was therefore determined by a conception of what things constituted happiness , be they temporal satisfaction or salvation . The state , in being bound by the natural law , was conceived as an institution directed at bringing its subjects to true happiness . In the 16th century , the School of Salamanca ( Francisco Surez , Francisco de Vitoria , etc. ) further developed a philosophy of natural law . After the Church of England broke from Rome , the English theologian Richard Hooker adapted Thomistic notions of natural law to Anglicanism . There are five important principles : to live , to learn , to reproduce , to worship God , and to live in an ordered society . Those who see biblical support for the doctrine of natural law often point to Paul 's Epistle to the Romans : For when the Gentiles , which have not the law , do by nature the things contained in the law , these , having not the law , are a law unto themselves : Which shew the work of the law written in their hearts , their conscience also bearing witness , and their thoughts the mean while accusing or else excusing one another . ( ) . The intellectual historian A. J. Carlyle has commented on this passage , There can be little doubt that St Paul 's words imply some conception analogous to the ' natural law ' in Cicero , a law written in men 's hearts , recognized by man 's reason , a law distinct from the positive law of any State , or from what St Paul recognized as the revealed law of God . It is in this sense that St Paul 's words are taken by the Fathers of the fourth and fifth centuries like St Hilary of Poitiers , St Ambrose , and St Augustine , and there seems no reason to doubt the correctness of their interpretation . # English jurisprudence # Heinrich A. Rommen remarked upon the tenacity with which the spirit of the English common law retained the conceptions of natural law and equity which it had assimilated during the Catholic Middle Ages , thanks especially to the influence of Henry de Bracton ( d. 1268 ) and Sir John Fortescue ( d. cir. 1476 ) . Bracton 's translator notes that Bracton was a trained jurist with the principles and distinctions of Roman jurisprudence firmly in mind ; but Bracton adapted such principles to English purposes rather than copying slavishly . In particular , Bracton turned the imperial Roman maxim that the will of the prince is law on its head , insisting that the king is ' ' under ' ' the law . The legal historian Charles F. Mullett has noted Bracton 's ethical definition of law , his recognition of justice , and finally his devotion to natural rights . Bracton considered justice to be the fountain-head from which all rights arise . For his definition of justice , Bracton quoted the twelfth-century Italian jurist Azo : ' Justice is the constant and unfailing will to give to each his right . ' Bracton 's work was the second legal treatise studied by the young apprentice lawyer Thomas Jefferson . Fortescue stressed the supreme importance of the law of God and of nature in works that profoundly influenced the course of legal development in the following centuries . The legal scholar Ellis Sandoz has noted that the historically ancient and the ontologically higher laweternal , divine , naturalare woven together to compose a single harmonious texture in Fortescue 's account of English law . As the legal historian Norman Doe explains : Fortescue follows the general pattern set by Aquinas . The objective of every legislator is to dispose people to virtue . It is by means of law that this is accomplished . Fortescue 's definition of law ( also found in Accursius and Bracton ) , after all , was ' a sacred sanction commanding what is virtuous ' ' honesta ' ' and forbidding the contrary . ' Fortescue cited Leonardo Bruni for his statement that virtue alone produces happiness . Christopher St. Germain 's ' ' Doctor and Student ' ' was a classic of English jurisprudence , and it was thoroughly annotated by Thomas Jefferson . St. Germain informs his readers that English lawyers generally do n't use the phrase law of nature , but rather use reason as the preferred synonym . Norman Doe notes that St. Germain 's view is essentially Thomist , quoting Thomas Aquinas 's definition of law as an ordinance of reason made for the common good by him who has charge of the community , and promulgated . Sir Edward Coke was the preeminent jurist of his time . Coke 's preeminence extended across the ocean : For the American revolutionary leaders , ' law ' meant Sir Edward Coke 's custom and right reason . Coke defined law as perfect reason , which commands those things that are proper and necessary and which prohibits contrary things . For Coke , human nature determined the purpose of law ; and law was superior to any one man 's reason or will . Coke 's discussion of natural law appears in his report of ' ' Calvin 's Case ' ' ( 1608 ) : The law of nature is that which God at the time of creation of the nature of man infused into his heart , for his preservation and direction . In this case the judges found that the ligeance or faith of the subject is due unto the King by the law of nature : secondly , that the law of nature is part of the law of England : thirdly , that the law of nature was before any judicial or municipal law : fourthly , that the law of nature is immutable . To support these findings , the assembled judges ( as reported by Coke , who was one of them ) cited as authorities Aristotle , Cicero , and the Apostle Paul ; as well as Bracton , Fortescue , and St. Germain . As early as the thirteenth century , it was held that the law of nature ... is the ground of all laws and by the Chancellor and Judges that it is required by the law of nature that every person , before he can be punish 'd , ought to be present ; and if absent by contumacy , he ought to be summoned and make default . . Further , in 1824 , we find it held that proceedings in our Courts are founded upon the law of England , and that law is again founded upon the law of nature and the revealed law of God . If the right sought to be enforced is inconsistent with either of these , the English municipal courts can not recognize it . # American jurisprudence # The U.S. Declaration of Independence states that it has become necessary for the people of the United States to assume the separate and equal station to which the Laws of Nature and of Nature 's God entitle them . Some early American lawyers and judges perceived natural law as too tenuous , amorphous and evanescent a legal basis for grounding concrete rights and governmental limitations . Natural law did , however , serve as authority for legal claims and rights in some judicial decisions , legislative acts , and legal pronouncements . Robert Lowry Clinton argues that the U.S. Constitution rests on a common law foundation and the common law , in turn , rests on a classical natural law foundation . # Islamic natural law # Ab Rayhn al-Brn , an Islamic scholar and polymath scientist , understood natural law as the survival of the fittest . He argued that the antagonism between human beings can only be overcome through a divine law , which he believed to have been sent through prophets . This is also the position of the Ashari school , the largest school of Sunni theology . Averroes ( Ibn Rushd ) , in his treatise on ' ' Justice and Jihad ' ' and his commentary on Plato 's ' ' Republic ' ' , writes that the human mind can know of the unlawfulness of killing and stealing and thus of the five maqasid or higher intents of the Islamic sharia or to protect religion , life , property , offspring , and reason . The concept of natural law entered the mainstream of Western culture through his Aristotelian commentaries , influencing the subsequent Averroist movement and the writings of Thomas Aquinas . The Maturidi school , the second largest school of Sunni theology , posits the existence of a form of natural law . Abu Mansur al-Maturidi stated that the human mind could know of the existence of God and the major forms of ' good ' and ' evil ' without the help of revelation . Al-Maturidi gives the example of stealing , which is known to be evil by reason alone due to man 's working hard for his property . Killing , fornication , and drinking alcohol were all ' evils ' the human mind could know of according to al-Maturidi . The concept of ' ' Istislah ' ' in Sharia # Hobbes # Liberal natural law grew out of the medieval Christian natural law theories and out of Hobbes ' revision of natural law , sometimes in an uneasy balance of the two . Hugo Grotius based his philosophy of international law on natural law . In particular , his writings on freedom of the seas and just war theory directly appealed to natural law . About natural law itself , he wrote that even the will of an omnipotent being can not change or abrogate natural law , which would maintain its objective validity even if we should assume the impossible , that there is no God or that he does not care for human affairs . ( ' ' De iure belli ac pacis ' ' , Prolegomeni XI ) . This is the famous argument ' ' etiamsi daremus ' ' ( ' ' non esse Deum ' ' ) , that made natural law no longer dependent on theology . However , German church-historians Ernst Wolf and M. Elze disagreed and claimed that Grotius ' concept of natural law did have a theological basis . In Grotius ' view , the Old Testament contained moral precepts ( e.g. the Decalogue ) which Christ confirmed and therefore were still valid . Moreover , they were useful in explaining the content of natural law . Both biblical revelation and natural law originated in God and could therefore not contradict each other . In a similar way , Samuel Pufendorf gave natural law a theological foundation and applied it to his concepts of government and international law . John Locke incorporated natural law into many of his theories and philosophy , especially in ' ' Two Treatises of Government ' ' . There is considerable debate about whether his conception of natural law was more akin to that of Aquinas ( filtered through Richard Hooker ) or Hobbes ' radical reinterpretation , though the effect of Locke 's understanding is usually phrased in terms of a revision of Hobbes upon Hobbesean contractualist grounds . Locke turned Hobbes ' prescription around , saying that if the ruler went against natural law and failed to protect life , liberty , and property , people could justifiably overthrow the existing state and create a new one . While Locke spoke in the language of natural law , the content of this law was by and large protective of natural rights , and it was this language that later liberal thinkers preferred . Political philosopher Jeremy Waldron has pointed out that Locke 's political thought was based on a particular set of Protestant Christian assumptions . To Locke , the content of natural law was identical with biblical ethics as laid down especially in the Decalogue , Christ 's teaching and exemplary life , and St. Paul 's admonitions . Locke derived the concept of basic human equality , including the equality of the sexes ( Adam and Eve ) , from , the starting-point of the theological doctrine of Imago Dei . One of the consequences is that as all humans are created equally free , governments need the consent of the governed . Thomas Jefferson , arguably echoing Locke , appealed to unalienable rights in the ' ' Declaration of Independence ' ' , We hold these truths to be self-evident , that all men are ' ' created ' ' equal , that they are endowed by their ' ' Creator ' ' with certain unalienable Rights , that among these are Life , Liberty and the pursuit of Happiness . The Lockean idea that governments need the consent of the governed was also fundamental to the Declaration of Independence , as the American Revolutionaries used it as justification for their separation from the British crown . The Belgian philosopher of law Frank van Dun is one among those who are elaborating a secular conception of natural law in the liberal tradition . Libertarian theorist Murray Rothbard argues that the very existence of a natural law discoverable by reason is a potentially powerful threat to the status quo and a standing reproach to the reign of blindly traditional custom or the arbitrary will of the State apparatus . Ludwig von Mises states that he relaid the general sociological and economic foundations of the liberal doctrine upon utilitarianism , rather than natural law , but R.A. Gonce argues that the reality of the argument constituting his system overwhelms his denial . David Gordon notes , When most people speak of natural law , what they have in mind is the contention that morality can be derived from human nature . If human beings are rational animals of such-and-such a sort , then the moral virtues are ... ( filling in the blanks is the difficult part ) . However , a secular critique of the natural law doctrine was stated by Pierre Charron in his ' ' De la sagesse ' ' ( 1601 ) : The sign of a natural law must be the universal respect in which it is held , for if there was anything that nature had truly commanded us to do , we would undoubtedly obey it universally : not only would every nation respect it , but every individual . Instead there is nothing in the world that is not subject to contradiction and dispute , nothing that is not rejected , not just by one nation , but by many ; equally , there is nothing that is strange and ( in the opinion of many ) unnatural that is not approved in many countries , and authorized by their customs . # Contemporary Christian understanding # The Roman Catholic Church holds the view of natural law provided by St. Thomas Aquinas , particularly in his ' ' Summa Theologiae ' ' , and often as filtered through the School of Salamanca . This view is also shared by some Protestant churches , and was delineated by C.S. Lewis in his works ' ' Mere Christianity ' ' and ' ' The Abolition of Man . The Catholic Church understands human beings to consist of body and mind , the physical and the non-physical ( or soul perhaps ) , and that the two are inextricably linked . Humans are capable of discerning the difference between good and evil because they have a conscience . There are many manifestations of the good that we can pursue . Some , like procreation , are common to other animals , while others , like the pursuit of truth , are inclinations peculiar to the capacities of human beings . John Wijngaards disputes the Magisterium 's interpretation of Natural Law as applied to specific points of sexual ethics , such as in the areas of contraceptives and homosexual unions . To know what is right , one must use one 's reason and apply it to Aquinas ' precepts . This reason is believed to be embodied , in its most abstract form , in the concept of a primary precept : Good is to be sought , evil avoided . St. Thomas explains that : # there belongs to the natural law , first , certain most general precepts , that are known to all ; and secondly , certain secondary and more detailed precepts , which are , as it were , conclusions following closely from first principles . As to those general principles , the natural law , in the abstract , can nowise be blotted out from men 's hearts . But it is blotted out in the case of a particular action , insofar as reason is hindered from applying the general principle to a particular point of practice , on account of concupiscence or some other passion , as stated above ( 77 , 2 ) . But as to the other , i.e. , the secondary precepts , the natural law can be blotted out from the human heart , either by evil persuasions , just as in speculative matters errors occur in respect of necessary conclusions ; or by vicious customs and corrupt habits , as among some men , theft , and even unnatural vices , as the Apostle states ( Rm. i ) , were not esteemed sinful . # However , while the primary and immediate precepts can not be blotted out , the secondary precepts can be . Therefore , for a deontological ethical theory they are open to a surprisingly large amount of interpretation and flexibility . Any rule that helps man to live up to the primary or subsidiary precepts can be a secondary precept , for example : Drunkenness is wrong because it injures one 's health , and worse , destroys one 's ability to reason , which is fundamental to man as a rational animal ( i.e. , does not support self-preservation ) . Theft is wrong because it destroys social relations , and man is by nature a social animal ( i.e. , does not support the subsidiary precept of living in society ) . Natural moral law is concerned with both exterior and interior acts , also known as action and motive . Simply doing the right thing is not enough ; to be truly moral one 's motive must be right as well . For example , helping an old lady across the road ( good exterior act ) to impress someone ( bad interior act ) is wrong . However , good intentions do n't always lead to good actions . The motive must coincide with the cardinal or theological virtues . Cardinal virtues are acquired through reason applied to nature ; they are : # Prudence # Justice # Temperance # Fortitude The theological virtues are : # Faith # Hope # Charity According to Aquinas , to lack any of these virtues is to lack the ability to make a moral choice . For example , consider a man who possesses the virtues of justice , prudence , and fortitude , yet lacks temperance . Due to his lack of self-control and desire for pleasure , despite his good intentions , he will find himself swaying from the moral path . # In contemporary jurisprudence # In jurisprudence , ' ' natural law ' ' can refer to the several doctrines : That just laws are immanent in nature ; that is , they can be discovered or found but not created by such things as a bill of rights ; That they can emerge by the natural process of resolving conflicts , as embodied by the evolutionary process of the common law ; or That the meaning of law is such that its content can not be determined except by reference to moral principles . These meanings can either oppose or complement each other , although they share the common trait that they rely on inherence as opposed to design in finding just laws . Whereas legal positivism would say that a law can be unjust without it being any less a law , a natural law jurisprudence would say that there is something legally deficient about an unjust law . Legal interpretivism , famously defended in the English-speaking world by Ronald Dworkin , claims to have a position different from both natural law and positivism . Besides utilitarianism and Kantianism , natural law jurisprudence has in common with virtue ethics that it is a live option for a first principles ethics theory in analytic philosophy . The concept of natural law was very important in the development of the English common law . In the struggles between Parliament and the monarch , Parliament often made reference to the Fundamental Laws of England , which were at times said to embody natural law principles since time immemorial and set limits on the power of the monarchy . According to William Blackstone , however , natural law might be useful in determining the content of the common law and in deciding cases of equity , but was not itself identical with the laws of England . Nonetheless , the implication of natural law in the common law tradition has meant that the great opponents of natural law and advocates of legal positivism , like Jeremy Bentham , have also been staunch critics of the common law . Natural law jurisprudence is currently undergoing a period of reformulation ( as is legal positivism ) . The most prominent contemporary natural law jurist , Australian John Finnis , is based in Oxford , but there are also Americans Germain Grisez , Robert P. George , and Canadian Joseph Boyle . All have tried to construct a new version of natural law . The 19th-century anarchist and legal theorist , Lysander Spooner , was also a figure in the expression of modern natural law . New Natural Law as it is sometimes called , originated with Grisez . It focuses on basic human goods , such as human life , knowledge , and aesthetic experience , which are self-evidently and intrinsically worthwhile , and states that these goods reveal themselves as being incommensurable with one another . The tensions between the natural law and the positive law have played , and continue to play a key role in the development of international law .
@@24647 Property law is the area of law that governs the various forms of ownership and tenancy in real property ( land as distinct from personal or movable possessions ) and in personal property , within the common law legal system . In the civil law system , there is a division between movable and immovable property . Movable property roughly corresponds to personal property , while immovable property corresponds to real estate or real property , and the associated rights and obligations thereon . The concept , idea or philosophy of property underlies all property law . In some jurisdictions , historically all property was owned by the monarch and it devolved through feudal land tenure or other feudal systems of loyalty and fealty . Though the Napoleonic code was among the first government acts of modern times to introduce the notion of absolute ownership into statute , protection of personal property rights was present in medieval Islamic law and jurisprudence , and in more feudalist forms in the common law courts of medieval and early modern England . # Theory # The word ' ' property ' ' , in everyday usage , refers to an object ( or objects ) owned by a person a car , a book , or a cellphone and the relationship the person has to it . In law , the concept acquires a more nuanced rendering . Factors to consider include the nature of the object , the relationship between the person and the object , the relationship between a number of people in relation to the object , and how the object is regarded within the prevailing political system . Most broadly and concisely , property in the legal sense refers to the rights of people in or over certain objects or things . # Anglo-American theory # James Wilson , U.S. Supreme Court Justice and professor of law at the University of Pennsylvania , in 1790 and 1791 , undertook a survey of the philosophical grounds of American property law . He proceeds from two premises : Every crime includes an injury : every injury includes a violation of a right . ( Lectures , III , ii . ) The governments role in protecting property depends upon an idea of right . Wilson traces the history of property in his essay On the History of Property . In his lecture , Of the natural rights of individuals ( Lectures II , xii ) , he articulates related contemporary theory . That theory was brought to a focus on the question of whether man exists for the sake of government , or government for the sake of man a distinction which may derive from , or lead to , the question of natural and absolute rights , and whether property is one of them . While he doubts this is so , he nonetheless states : In his unrelated state , man has a natural right to his property , to his character , to liberty , and to safety . James Wilson asks whether the primary and principal object in the institution of government was to acquire new rights by human establishment ? Or was it , by a human establishment , to acquire a new security for the possession or the recovery of those rights. ? He indicates a preference for the latter . In the opening sentence of On the History of Property , he states quite clearly : Property is the right or lawful power , which a person has to a thing . He then divides the right into three degrees : possession , the lowest ; possession and use ; and , possession , use , and disposition the highest . Further , he states : Man is intended for action . Useful and skilful industry is the soul of an active life . But industry should have her just reward . That reward is property , for of useful and active industry , property is the natural result . From this simple reasoning he is able to present the conclusion that exclusive , as opposed to communal property , is to be preferred . Wilson does , however , give a survey of communal property arrangements in history , not only in colonial Virginia but also ancient Sparta . Non-legally recognized or documented property rights are known as informal property rights . These informal property rights are non-codified or documented , but recognized among local residents to varying degrees . Priority Different parties may claim an interest in property by mistake or fraud , with the claims being inconsistent of each other . For example , the party creating or transferring an interest may have a valid title , but intentionally or negligently creates several interests wholly or partially inconsistent with each other . A court resolves the dispute by adjudicating the priorities of the interests . but according to the Indian property law it define the Transfer of property means an act by which a living person conveys property , in present or in future , to one or more other living persons , or to himself and one or more other living persons ; and to transfer property is to perform such act . In this section living person includes a company or association or body of individuals , whether incorporated or not , but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies , associations or bodies of individuals John Hardy from the Legal institute of England stated For the title to be valid , we must incorporate the company or association for the living This statement has been used thoroughly # Property rights and rights to people # Property rights are rights over things enforceable against all other persons . By contrast , contractual rights are rights enforceable against particular persons . Property rights may , however , arise from a contract ; the two systems of rights overlap . In relation to the sale of land , for example , two sets of legal relationships exist alongside one another : the contractual right to sue for damages , and the property right exercisable over the land . More minor property rights may be created by contract , as in the case of easements , covenants , and equitable servitudes . A separate distinction is evident where the rights granted are insufficiently substantial to confer on the nonowner a definable interest or right in the thing . The clearest example of these rights is the license . In general , even if licenses are created by a binding contract , they do not give rise to property interests . # Property rights and personal rights # Property rights are also distinguished from personal rights . Practically all contemporary societies acknowledge this basic ontological and ethical distinction . In the past , groups lacking political power have often been disqualified from the benefits of property . In an extreme form , this has meant that people have become objects of propertylegally things or chattels . ( See slavery . ) More commonly , marginalized groups have been denied legal rights to own property . These include Jews in England and married women in Western societies until the late 19th century . The dividing line between personal rights and property rights is not always easy to draw . For instance , is one 's reputation property that can be commercially exploited by affording property rights to it ? The question of the proprietary character of personal rights is particularly relevant in the case of rights over human tissue , organs and other body parts . There have been recent cases of women being subordinated to the fetus , through the imposition of unwanted caesarian sections . English judges have recently made the point that such women lack the right to exclusive control over their own bodies , formerly considered a fundamental common-law right . In the United States , a quasi-property interest has been explicitly declared in the dead body . Also in the United States , it has been recognised that people have an alienable proprietary right of publicity over their persona . The patentpatenting of biotechnological processes and products based on human genetic material may be characterised as creating property in human life . A particularly difficult question is whether people have rights to intellectual property developed by others from their body parts . In the pioneering case on this issue , the Supreme Court of California held in ' ' Moore v. Regents of the University of California ' ' ( 1990 ) that individuals do not have such a property right . # Classification # Property law is characterised by a great deal of historical continuity and technical terminology . The basic distinction in common law systems is between real property ( land ) and personal property ( chattels ) . Before the mid-19th century , the principles governing the transfer of real property and personal property on an intestacy were quite different . Though this dichotomy does not have the same significance anymore , the distinction is still fundamental because of the essential differences between the two categories . An obvious example is the fact that land is immovable , and thus the rules that govern its use must differ . A further reason for the distinction is that legislation is often drafted employing the traditional terminology . The division of land and chattels has been criticised as being not satisfactory as a basis for categorising the principles of property law since it concentrates attention not on the proprietary interests themselves but on the objects of those interests . Moreover , in the case of fixtures , chattels which are affixed to or placed on land may become part of the land . Real property is generally sub-classified into : #corporeal hereditaments tangible real property ( land ) #incorporeal hereditaments intangible real property such as an easement of way # Possession # The concept of possession developed from a legal system whose principal concern was to avoid civil disorder . The general principle is that a person in possession of land or goods , even as a wrongdoer , is entitled to take action against anyone interfering with the possession unless the person interfering is able to demonstrate a superior right to do so . In England , the Torts Act 1977 has significantly amended the law relating to wrongful interference with goods and abolished some longstanding remedies and doctrines . # Transfer of property # The most usual way of acquiring an interest in property is as the result of a consensual transaction with the previous owner , for example , a sale or a gift . Dispositions by will may also be regarded as consensual transactions , since the effect of a will is to provide for the distribution of the deceased person 's property to nominated beneficiaries . A person may also obtain an interest in property under a trust established for his or her benefit by the owner of the property . It is also possible for property to pass from one person to another independently of the consent of the property owner . For example , this occurs when a person dies intestate , goes bankrupt , or has the property taken in execution of a court judgment . # Priority # Different parties may claim an interest in property by mistake or fraud , with the claims being inconsistent of each other . For example , the party creating or transferring an interest may have a valid title , but intentionally or negligently creates several interests wholly or partially inconsistent with each other . A court resolves the dispute by adjudicating the priorities of the interests . but according to the Indian property law it define the Transfer of property means an act by which a living person conveys property , in present or in future , to one or more other living persons , or to himself and one or more other living persons ; and to transfer property is to perform such act . In this section living person includes a company or association or body of individuals , whether incorporated or not , but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies , associations or bodies of individuals John Hardy from the Legal institute of England stated For the title to be valid , we must incorporate the company or association for the living This statement has been used thoroughly . # Lease # Historically , leases served many purposes , and the regulation varied according to intended purposes and the economic conditions of the time . Leaseholds , for example , were mainly granted for agriculture until the late eighteenth century and early nineteenth century , when the growth of cities made the leasehold an important form of landholding in urban areas . The modern law of landlord and tenant in common law jurisdictions retains the influence of the common law and , particularly , the ' ' laissez-faire ' ' philosophy that dominated the law of contract and the law of property in the 19th century . With the growth of consumerism , the law of consumer protection recognised that common law principles assuming equal bargaining power between parties may cause unfairness . Consequently , reformers have emphasised the need to assess residential tenancy laws in terms of protection they provide to tenants . Legislation to protect tenants is now common .
@@26364 Roman law is the legal system of ancient Rome , and the legal developments spanning over a thousand years of jurisprudence , from the 12 Tables ( c. 449 BC ) , to the ' ' Corpus Juris Civilis ' ' ( AD 529 ) ordered by Eastern Roman emperor Justinian I. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in legal systems influenced by it . After the dissolution of the Western Roman Empire , the Justinian Code remained in effect in the Eastern empire , known in the modern era as the Byzantine Empire ( 3311453 ) . From the 7th century onward , the legal language in the East was Greek . Roman law also denotes the legal system applied in most of Western Europe until the end of the 18th century . In Germany , Roman law practice remained in place longer under the Holy Roman Empire ( 9631806 ) . Roman law thus served as a basis for legal practice throughout Western continental Europe , as well as in most former colonies of these European nations , including Latin America , and also in Ethiopia . English and North American common law were influenced also by Roman law , notably in their Latinate legal glossary ( for example , ' ' stare decisis ' ' , ' ' culpa in contrahendo ' ' , ' ' pacta sunt servanda ' ' ) . Eastern Europe was also influenced by the jurisprudence of the ' ' Corpus Juris Civilis ' ' , especially in countries such as medieval Romania ( Wallachia , Moldova , and some other medieval provinces/historical regions ) which created a new system , a mixture of Roman and local law . Also , Eastern European law was influenced by the Farmer 's Law of the medieval Byzantine legal system . # Roman legal development # Before the Twelve Tables ( 754449 BC ) , private law comprised the Roman civil law ( ' ' ius civile Quiritium ' ' ) that applied only to Roman citizens , and was bonded to religion ; undeveloped , with attributes of strict formalism , symbolism , and conservatism , e.g. the ritual practice of mancipatio ( a form of sale ) . The jurist Sextus Pomponius said , At the beginning of our city , the people began their first activities without any fixed law , and without any fixed rights : all things were ruled despotically , by kings . It is believed that Roman Law is rooted in the Etruscan religion , emphasising ritual . # The Twelve Tables # The first legal text is the Law of the Twelve Tables , dating from mid-5th century BC . The plebeian tribune , C. Terentilius Arsa , proposed that the law should be written , in order to prevent magistrates from applying the law arbitrarily . After eight years of political struggle , the plebeian social class convinced the patricians to send a delegation to Athens , to copy the Laws of Solon ; they also dispatched delegations to other Greek cities for like reason . In 451 BC , according to the traditional story ( as Livy tells it ) , ten Roman citizens were chosen to record the laws ( ' ' decemviri legibus scribundis ' ' ) . While they were performing this task , they were given supreme political power ( ' ' imperium ' ' ) , whereas the power of the magistrates was restricted . In 450 BC , the ' ' decemviri ' ' produced the laws on ten tablets ( ' ' tabulae ' ' ) , but these laws were regarded as unsatisfactory by the plebeians . A second decemvirate is said to have added two further tablets in 449 BC . The new Law of the Twelve Tables was approved by the people 's assembly . Modern scholars tend to challenge the accuracy of Roman historians . They generally do not believe that a second decemvirate ever took place . The decemvirate of 451 is believed to have included the most controversial points of customary law , and to have assumed the leading functions in Rome . Furthermore , the question on the Greek influence found in the early Roman Law is still much discussed . Many scholars consider it unlikely that the patricians sent an official delegation to Greece , as the Roman historians believed . Instead , those scholars suggest , the Romans acquired Greek legislations from the Greek cities of Magna Graecia , the main portal between the Roman and Greek worlds . The original text of the Twelve Tables has not been preserved . The tablets were probably destroyed when Rome was conquered and burned by the Gauls in 387 BC . The fragments which did survive show that it was not a law code in the modern sense . It did not provide a complete and coherent system of all applicable rules or give legal solutions for all possible cases . Rather , the tables contained specific provisions designed to change the then-existing customary law . Although the provisions pertain to all areas of law , the largest part is dedicated to private law and civil procedure . # Early law and jurisprudence # Many laws include ' ' Lex Canuleia ' ' ( 445 BC ; which allowed the marriage ' ' ius connubii ' ' between patricians and plebeians ) , ' ' Leges Licinae Sextiae ' ' ( 367 BC ; which made restrictions on possession of public lands ' ' ager publicus ' ' and also made sure that one of consuls is plebeian ) , ' ' Lex Ogulnia ' ' ( 300 BC ; plebeians received access to priest posts ) , and ' ' Lex Hortensia ' ' ( 287 BC ; verdicts of plebeian assemblies ' ' plebiscita ' ' now bind all people ) . Another important statute from the Republican era is the ' ' Lex Aquilia ' ' of 286 BC , which may be regarded as the root of modern tort law . However , Rome 's most important contribution to European legal culture was not the enactment of well-drafted statutes , but the emergence of a class of professional jurists ( ' ' prudentes ' ' , sing . ' ' prudens ' ' , or ' ' jurisprudentes ' ' ) and of a legal science . This was achieved in a gradual process of applying the scientific methods of Greek philosophy to the subject of law , a subject which the Greeks themselves never treated as a science . Traditionally , the origins of Roman legal science are connected to Gnaeus Flavius . Flavius is said to have published around the year 300 BC the formularies containing the words which had to be spoken in court to begin a legal action . Before the time of Flavius , these formularies are said to have been secret and known only to the priests . Their publication made it possible for non-priests to explore the meaning of these legal texts . Whether or not this story is credible , jurists were active and legal treatises were written in larger numbers the 2nd century BC . Among the famous jurists of the republican period are Quintus Mucius Scaevola who wrote a voluminous treatise on all aspects of the law , which was very influential in later times , and Servius Sulpicius Rufus , a friend of Marcus Tullius Cicero . Thus , Rome had developed a very sophisticated legal system and a refined legal culture when the Roman republic was replaced by the monarchical system of the principate in 27 BC . # Pre-classical period # In the period between about 201 to 27 BC , we can see the development of more flexible laws to match the needs of the time . In addition to the old and formal ' ' ius civile ' ' a new juridical class is created : the ' ' ius honorarium ' ' , which can be defined as The law introduced by the magistrates who had the right to promulgate edicts in order to support , supplement or correct the existing law . With this new law the old formalism is being abandoned and new more flexible principles of ' ' ius gentium ' ' are used . The adaptation of law to new needs was given over to juridical practice , to magistrates , and especially to the praetors . A praetor was not a legislator and did not technically create new law when he issued his edicts ( ' ' magistratuum edicta ' ' ) . In fact , the results of his rulings enjoyed legal protection ( ' ' actionem dare ' ' ) and were in effect often the source of new legal rules . A Praetor 's successor was not bound by the edicts of his predecessor ; however , he did take rules from edicts of his predecessor that had proved to be useful . In this way a constant content was created that proceeded from edict to edict ( ' ' edictum traslatitium ' ' ) . Thus , over the course of time , parallel to the civil law and supplementing and correcting it , a new body of praetoric law emerged . In fact , praetoric law was so defined by the famous Roman jurist Papinian ( Amilius Papinianusdied in 212 AD ) : ' ' Ius praetorium est quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam ' ' ( praetoric law is that law introduced by praetors to supplement or correct civil law for public benefit ) . Ultimately , civil law and praetoric law were fused in the ' ' Corpus Juris Civilis ' ' . # Classical Roman law # The first 250 years of the current era are the period during which Roman law and Roman legal science reached its greatest degree of sophistication . The law of this period is often referred to as the ' ' classical period of Roman law ' ' . The literary and practical achievements of the jurists of this period gave Roman law its unique shape . The jurists worked in different functions : They gave legal opinions at the request of private parties . They advised the magistrates who were entrusted with the administration of justice , most importantly the praetors . They helped the praetors draft their edicts , in which they publicly announced at the beginning of their tenure , how they would handle their duties , and the formularies , according to which specific proceedings were conducted . Some jurists also held high judicial and administrative offices themselves . The jurists also produced all kinds of legal commentaries and treatises . Around AD 130 the jurist Salvius Iulianus drafted a standard form of the praetor 's edict , which was used by all praetors from that time onwards . This edict contained detailed descriptions of all cases , in which the praetor would allow a legal action and in which he would grant a defense . The standard edict thus functioned like a comprehensive law code , even though it did not formally have the force of law . It indicated the requirements for a successful legal claim . The edict therefore became the basis for extensive legal commentaries by later classical jurists like Paulus and Domitius Ulpianus . The new concepts and legal institutions developed by pre-classical and classical jurists are too numerous to mention here . Only a few examples are given here : Roman jurists clearly separated the legal right to use a thing ( ownership ) from the factual ability to use and manipulate the thing ( possession ) . They also found the distinction between contract and tort as sources of legal obligations . The standard types of contract ( sale , contract for work , hire , contract for services ) regulated in most continental codes and the characteristics of each of these contracts were developed by Roman jurisprudence. The classical jurist Gaius ( around 160 ) invented a system of private law based on the division of all material into ' ' personae ' ' ( persons ) , ' ' res ' ' ( things ) and ' ' actiones ' ' ( legal actions ) . This system was used for many centuries . It can be recognized in legal treatises like William Blackstone 's ' ' Commentaries on the Laws of England ' ' and enactments like the French Code civil or the German BGB. # Post-classical law # By the middle of the 3rd century , the conditions for the flourishing of a refined legal culture had become less favourable . The general political and economic situation deteriorated as the emperors assumed more direct control of all aspects of political life . The political system of the principate , which had retained some features of the republican constitution , began to transform itself into the absolute monarchy of the dominate . The existence of a legal science and of jurists who regarded law as a science , not as an instrument to achieve the political goals set by the absolute monarch , did not fit well into the new order of things . The literary production all but ended . Few jurists after the mid-3rd century are known by name . While legal science and legal education persisted to some extent in the eastern part of the Empire , most of the subtleties of classical law came to be disregarded and finally forgotten in the west . Classical law was replaced by so-called vulgar law . # Roman law substance # # Concepts # ' ' jus civile , Jus gentium , and jus naturale ' ' - the ' ' jus civile ' ' ( citizen law , originally ' ' jus civile Quiritium ' ' ) was the body of common laws that applied to Roman citizens and the ' ' Praetores Urbani ' ' , the individuals who had jurisdiction over cases involving citizens . The ' ' jus gentium ' ' ( law of peoples ) was the body of common laws that applied to foreigners , and their dealings with Roman citizens . The ' ' Praetores Peregrini ' ' were the individuals who had jurisdiction over cases involving citizens and foreigners . ' ' Jus naturale ' ' was a concept the jurists developed to explain why all people seemed to obey some laws . Their answer was that a natural law instilled in all beings a common sense . ' ' Jus scriptum and jus non scriptum ' ' - the terms ' ' jus scriptum ' ' and ' ' ius non scriptum ' ' literally mean written and unwritten law , respectively . In practice , the two differed by the means of their creation and not necessarily whether or not they were written down . The ' ' ius scriptum ' ' was the body of statute laws made by the legislature . The laws were known as ' ' leges ' ' ( lit. laws ) and ' ' plebiscita ' ' ( lit. plebiscites , originating in the Plebeian Council ) . Roman lawyers would also include in the ' ' ius scriptum ' ' the edicts of magistrates ( ' ' magistratuum edicta ' ' ) , the advice of the Senate ( ' ' Senatus consulta ' ' ) , the responses and thoughts of jurists ( ' ' responsa prudentium ' ' ) , and the proclamations and beliefs of the emperor ( ' ' principum placita ' ' ) . ' ' Ius non scriptum ' ' was the body of common laws that arose from customary practice and had become binding over time . ' ' ius commune and ius singulare ' ' - ' ' Ius singulare ' ' ( singular law ) is special law for certain groups of people , things , or legal relations ( because of which it is an exception from the general principles of the legal system ) , unlike general , ordinary , law ( ' ' ius commune ' ' ) . An example of this is the law about wills written by people in the military during a campaign , which are exempt of the solemnities generally required for citizens when writing wills in normal circumstances . ' ' ius publicum and ius privatum ' ' - ' ' ius publicum ' ' means public law and ' ' ius privatum ' ' means private law , where public law is to protect the interests of the Roman state while private law should protect individuals . In the Roman law ' ' ius privatum ' ' included personal , property , civil and criminal law ; judicial proceeding was private process ( ' ' iudicium privatum ' ' ) ; and crimes were private ( except the most severe ones that were prosecuted by the state ) . Public law will only include some areas of private law close to the end of the Roman state . ' ' Ius publicum ' ' was also used to describe obligatory legal regulations ( today called ' ' ius cogens ' ' this term is applied in modern international law to indicate peremptory norms that can not be derogated from ) . These are regulations that can not be changed or excluded by party agreement . Those regulations that can be changed are called today ' ' jus dispositivum ' ' , and they are not used when party shares something and are in contrary . # Public law # The Roman Republic 's constitution or ' ' mos maiorum ' ' ( custom of the ancestors ) was an unwritten set of guidelines and principles passed down mainly through precedent . Concepts that originated in the Roman constitution live on in constitutions to this day . Examples include checks and balances , the separation of powers , vetoes , filibusters , quorum requirements , term limits , impeachments , the powers of the purse , and regularly scheduled elections . Even some lesser used modern constitutional concepts , such as the block voting found in the electoral college of the United States , originate from ideas found in the Roman constitution . The constitution of the Roman Republic was not formal or even official . Its constitution was largely unwritten , and was constantly evolving throughout the life of the Republic . Throughout the 1st century BC , the power and legitimacy of the Roman constitution was progressively eroding . Even Roman constitutionalists , such as the senator Cicero , lost a willingness to remain faithful to it towards the end of the republic . When the Roman Republic ultimately fell in the years following the Battle of Actium and Mark Antony 's suicide , what was left of the Roman constitution died along with the Republic . The first Roman Emperor , Augustus , attempted to manufacture the appearance of a constitution that still governed the Empire . The belief in a surviving constitution lasted well into the life of the Roman Empire . # Private law # ' ' Stipulatio ' ' was the basic form of contract in Roman law . It was made in the format of question and answer . The precise nature of the contract was disputed , as can be seen below . ' ' Rei vindicatio ' ' is a legal action by which the plaintiff demands that the defendant return a thing that belongs to the plaintiff . It may only be used when plaintiff owns the thing , and the defendant is somehow impeding the plaintiff 's possession of the thing . The plaintiff could also institute an ' ' actio furti ' ' ( a personal action ) to punish the defendant . If the thing could not be recovered , the plaintiff could claim damages from the defendant with the aid of the ' ' condictio furtiva ' ' ( a personal action ) . With the aid of the ' ' actio legis Aquiliae ' ' ( a personal action ) , the plaintiff could claim damages from the defendant . ' ' Rei vindicatio ' ' was derived from the ius civile , therefore was only available to Roman citizens . # Roman status # To describe a person 's position in the legal system , Romans mostly used the expression ' ' status ' ' . The individual could have been a Roman citizen ( ' ' status civitatis ' ' ) unlike foreigners , or he could have been free ( ' ' status libertatis ' ' ) unlike slaves , or he could have had a certain position in a Roman family ( ' ' status familiae ' ' ) either as the head of the family ( ' ' pater familias ' ' ) , or some lower ' ' member ' ' . ' ' alieni iuris ' ' -which lives by someone elses law . Two status types were Senator and Emperor . # Roman litigation # The history of Roman Law can be divided into three systems of procedure : that of ' ' legis actiones ' ' , the ' ' formulary system ' ' , and ' ' cognitio extra ordinem ' ' . The periods in which these systems were in use overlapped one another and did not have definitive breaks , but it can be stated that the legis actio system prevailed from the time of the XII Tables ( c. 450 BC ) until about the end of the 2nd century BC , that the formulary procedure was primarily used from the last century of the Republic until the end of the classical period ( c . AD 200 ) , and that of cognitio extraordinarem was in use in post-classical times . Again , these dates are meant as a tool to help understand the types of procedure in use , not as a rigid boundary where one system stopped and another began . During the republic and until the bureaucratization of Roman judicial procedure , the judge was usually a private person ( ' ' iudex privatus ' ' ) . He had to be a Roman male citizen . The parties could agree on a judge , or they could appoint one from a list , called ' ' album iudicum ' ' . They went down the list until they found a judge agreeable to both parties , or if none could be found they had to take the last one on the list . No one had a legal obligation to judge a case . The judge had great latitude in the way he conducted the litigation . He considered all the evidence and ruled in the way that seemed just . Because the judge was not a jurist or a legal technician , he often consulted a jurist about the technical aspects of the case , but he was not bound by the jurist 's reply . At the end of the litigation , if things were not clear to him , he could refuse to give a judgment , by swearing that it was n't clear . Also , there was a maximum time to issue a judgment , which depended on some technical issues ( type of action , etc . ) . Later on , with the bureaucratization , this procedure disappeared , and was substituted by the so-called extra ordinem procedure , also known as cognitory . The whole case was reviewed before a magistrate , in a single phase . The magistrate had obligation to judge and to issue a decision , and the decision could be appealed to a higher magistrate . # Legacy # # In the East # When the centre of the Empire was moved to the Greek East in the 4th century , many legal concepts of Greek origin appeared in the official Roman legislation . The influence is visible even in the law of persons or of the family , which is traditionally the part of the law that changes least . For example Constantine started putting restrictions on the ancient Roman concept of ' ' patria potestas ' ' , the power held by the male head of a family over his descendents , by acknowledging that persons ' ' in potestate ' ' , the descendents , could have proprietary rights . He was apparently making concessions to the much stricter concept of paternal authority under Greek-Hellenistic law . The ' ' Codex Theodosianus ' ' ( 438 AD ) was a codification of Constantian laws . Later emperors went even further , until Justinian finally decreed that a child ' ' in potestate ' ' became owner of everything it acquired , except when it acquired something from its father . The codes of Justinian , particularly the ' ' Corpus Juris Civilis ' ' ( 529-534 ) continued to be the basis of legal practice in the Empire throughout its so-called ' ' Byzantine ' ' history . Leo III the Isaurian issued a new code , the ' ' Ecloga ' ' , in the early 8th century . In the 9th century , the emperors Basil I and Leo VI the Wise commissioned a combined translation of the Code and the Digest , parts of Justinian 's codes , into Greek , which became known as the ' ' Basilica ' ' . Roman law as preserved in the codes of Justinian and in the Basilica remained the basis of legal practice in Greece and in the courts of the Eastern Orthodox Church even after the fall of the Byzantine Empire and the conquest by the Turks , and also formed the basis for much of the ' ' Fetha Negest ' ' , which remained in force in Ethiopia until 1931. # In the West # In the west , Justinian 's political authority never went any farther than certain portions of the Italian and Hispanic peninsulas . Law codes were edicted by the Germanic kings , however , the influence of early Eastern Roman codes on some of these is quite discernible . In many early Germanic states , Roman citizens continued to be governed by Roman laws for quite some time , even while members of the various Germanic tribes were governed by their own respective codes . The ' ' Codex Justinianus ' ' and the Institutes of Justinian were known in Western Europe , and along with the earlier code of Theodosius II , served as models for a few of the Germanic law codes ; however , the ' ' Digest ' ' portion was largely ignored for several centuries until around 1070 , when a manuscript of the ' ' Digest ' ' was rediscovered in Italy . This was done mainly through the works of glossars who wrote their comments between lines ( ' ' glossa interlinearis ' ' ) , or in the form of marginal notes ( ' ' glossa marginalis ' ' ) . From that time , scholars began to study the ancient Roman legal texts , and to teach others what they learned from their studies . The center of these studies was Bologna . The law school there gradually developed into Europe 's first university . The students who were taught Roman law in Bologna ( and later in many other places ) found that many rules of Roman law were better suited to regulate complex economic transactions than were the customary rules , which were applicable throughout Europe . For this reason , Roman law , or at least some provisions borrowed from it , began to be re-introduced into legal practice , centuries after the end of the Roman empire . This process was actively supported by many kings and princes who employed university-trained jurists as counselors and court officials and sought to benefit from rules like the famous ' ' Princeps legibus solutus est ' ' ( The sovereign is not bound by the laws , a phrase initially coined by Ulpian , a Roman jurist ) . There have been several reasons why Roman law was favored in the Middle Ages . It was because Roman law regulated the legal protection of property and the equality of legal subjects and their wills , and because it prescribed the possibility that the legal subjects could dispose their property through testament . By the middle of the 16th century , the rediscovered Roman law dominated the legal practice of many European countries . A legal system , in which Roman law was mixed with elements of canon law and of Germanic custom , especially feudal law , had emerged . This legal system , which was common to all of continental Europe ( and Scotland ) was known as ' ' Ius Commune ' ' . This ' ' Ius Commune ' ' and the legal systems based on it are usually referred to as civil law in English-speaking countries . Only England and the Nordic countries did not take part in the wholesale reception of Roman law . One reason for this is that the English legal system was more developed than its continental counterparts by the time Roman law was rediscovered . Therefore , the practical advantages of Roman law were less obvious to English practitioners than to continental lawyers . As a result , the English system of common law developed in parallel to Roman-based civil law , with its practitioners being trained at the Inns of Court in London rather than receiving degrees in Canon or Civil Law at the Universities of Oxford or Cambridge . Elements of Romano-canon law were present in England in the ecclesiastical courts and , less directly , through the development of the equity system . In addition , some concepts from Roman law made their way into the common law . Especially in the early 19th century , English lawyers and judges were willing to borrow rules and ideas from continental jurists and directly from Roman law . The practical application of Roman law and the era of the European ' ' Ius Commune ' ' came to an end , when national codifications were made . In 1804 , the French civil code came into force . In the course of the 19th century , many European states either adopted the French model or drafted their own codes . In Germany , the political situation made the creation of a national code of laws impossible . From the 17th century , Roman law in Germany had been heavily influenced by domestic ( common ) law , and it was called ' ' usus modernus Pandectarum ' ' . In some parts of Germany , Roman law continued to be applied until the German civil code ( Brgerliches Gesetzbuch , BGB ) came into force in 1900 . Colonial expansion spread the civil law system . # Roman law today # Today , Roman law is no longer applied in legal practice , even though the legal systems of some states like South Africa and San Marino are still based on the old ' ' Ius Commune ' ' . However , even where the legal practice is based on a code , many rules deriving from Roman law apply : No code completely broke with the Roman tradition . Rather , the provisions of Roman law were fitted into a more coherent system and expressed in the national language . For this reason , knowledge of Roman law is indispensable to understand the legal systems of today . Thus , Roman law is often still a mandatory subject for law students in civil law jurisdictions . As steps towards a unification of the private law in the member states of the European Union are being taken , the old ' ' Ius Commune ' ' , which was the common basis of legal practice everywhere , but allowed for many local variants , is seen by many as a model . # See also # Auctoritas ( power of the sovereign ) Basileus ( akin to modern sovereign ) Capitis deminutio Certiorari Constitution of the Roman Republic Constitution ( Roman law ) Corpus Iuris Civilis Homo sacer Imperium ( Archons - magistrates - power ) Interregnum Justitium ( akin to modern state of exception ) Law Lex Caecilia Didia Lex Duodecim Tabularum Lex Junia Licinia Lex Manciana List of Roman laws Res extra commercium Roman-Dutch law Roman Senate Stipulatio Ancient Greek law # References and sources # ; References ; Sources Berger , Adolf , , ' ' Transactions of the American Philosophical Society ' ' , Vol. 43 , Part 2 . , Pp. 476 . Philadelphia : American Philosophical Society , 1953. ( reprinted 1980 , 1991 , 2002 ) . ISBN 1-58477-142-9 # Further reading # W. W. Buckland , , Cambridge : ' ' University Press ' ' , 1921. Fritz Schulz , ' ' History of Roman Legal Science ' ' , Oxford : ' ' Clarendon Press ' ' , 1946. Peter Stein , ' ' Roman Law in European History ' ' . Cambridge University Press , 1999 ( ISBN 0-521-64372-4 ) . Andrew Borkowski and Paul Du Plessis , ' ' Textbook on Roman law ' ' . Oxford University Press , 3rd Ed . ( ISBN 0-19-927607-2 ) . Barry Nicholas , ' ' An Introduction to Roman Law ' ' . Rev. ed . Ernest Metzger . Clarendon Press , 2008 ( ISBN 978-0-19-876063-4 ) . Jill Harries , Law and Empire in Late Antiquity Cambridge , 1999 ( ISBN 0-521-41087-8 ) . Gbor Hamza , ' ' Das rmische Recht und die Privatrechtsentwicklung in Russland im modernen Zeitalter ' ' In : Journal on European History of Law , London : STS Science Centre , Vol. 1 , No. 2 , pp. 20 26 , ( ISSN 2042-6402 ) .
@@27164 The Southern Poverty Law Center ( SPLC ) is an American nonprofit civil rights organization noted for its legal victories against white supremacist groups , its legal representation for victims of hate groups , its classification of militias and extremist organizations , and its educational programs that promote tolerance . The SPLC also classifies and lists hate groups organizations that in its opinion attack or malign an entire class of people , typically for their immutable characteristics . The SPLC 's hate group list has been the source of some controversy . In 1971 , Morris Dees and Joseph J. Levin Jr . founded the SPLC as a civil rights law firm based in Montgomery , Alabama . Civil rights leader Julian Bond joined Dees and Levin and served as president of the board between 1971 and 1979 . The SPLC 's litigating strategy involves filing civil suits for damages on behalf of the victims of hate group harassment , threats , and violence with the goal of financially depleting the responsible groups and individuals . While it originally focused on damages done by the Ku Klux Klan and other white supremacist groups , throughout the years the SPLC has become involved in other civil rights causes , among them , cases concerned with institutional racial segregation and discrimination , the mistreatment of aliens , and the separation of church and state . Along with civil rights organizations such as the Anti-Defamation League , the SPLC has provided information about hate groups to the Federal Bureau of Investigation ( FBI ) . The SPLC does not accept government funds , nor does it charge its clients legal fees or share in their court-awarded judgments . Most of its funds come from direct mail campaigns which have helped it to build substantial monetary reserves . Its fundraising appeals and accumulation of reserves have been the subject of some criticism . # History # The Southern Poverty Law Center was founded by civil rights lawyers Morris Dees and Joseph J. Levin Jr . in 1971 as a law firm designed to handle anti-discrimination cases in the United States . SPLC 's first president was Julian Bond , who served as president until 1979 and remains on its board of directors . In 1979 , the Center brought the first of its many cases against various Ku Klux Klan type organizations . In 1981 , the Center began its ' ' Klanwatch ' ' project to monitor the activities of the KKK . That project , now called ' ' Hatewatch , ' ' has been expanded to include seven other types of hate organizations . In July 1983 , the center 's office was firebombed , destroying the building and records . In February 1985 Klan members and a Klan sympathizer pleaded guilty to federal and state charges related to the fire . At the trial Klansmen Joe M. Garner and Roy T. Downs Jr . along with Charles Bailey pleaded guilty to conspiring to intimidate , oppress and threaten members of black organizations represented by SPLC . According to Dees over 30 people have been jailed in connection with plots to kill him or blow up the center . In 1984 , Dees became an assassination target of The Order , a revolutionary white supremacist group . Another target , radio host Alan Berg , was killed by the group outside his Colorado home . In 1987 , SPLC won a case against the United Klans of America for the lynching of Michael Donald , a black teenager in Mobile , Alabama . The SPLC used an unprecedented legal strategy of holding an organization responsible for the crimes of individual members to help produce a $7 million judgment for the victim 's mother . The verdict forced United Klans of America into bankruptcy . Its national headquarters was sold for approximately $52,000 to help satisfy the judgment . In 1987 , five members of a Klan offshoot , the White Patriot Party , were indicted for stealing military weaponry and plotting to kill Dees . In 1989 , the Center unveiled its Civil Rights Memorial , which was designed by Maya Lin . In October 1990 , the SPLC won $12.5 million in damages against Tom Metzger and his White Aryan Resistance when a Portland , Oregon , jury held the neo-Nazi group liable in the beating death of an Ethiopian immigrant . While Metzger lost his home and ability to publish material , the full amount of the multi-million dollar reward was not recovered . In 1995 , a group of four white males were indicted for planning to blow up the SPLC . The Center 's Teaching Tolerance project was initiated in 1991 , and its Klanwatch program has gradually expanded to include other anti-hate monitoring projects and a list of reported hate groups in the United States . In May 1998 , three white supremacists were arrested for allegedly planning a nationwide campaign of assassinations and bombings targeting Morris Dees , an undisclosed federal judge in Illinois , a black radio-show host in Missouri , Dees 's Southern Poverty Law Center in Alabama , the Simon Wiesenthal Center in Los Angeles , and the Anti-Defamation League in New York . In 1999 the SPLC broke ground on their new headquarters building . It was completed in 2001 . The SPLC has been criticized for using hyperbole and overstating the prevalence of hate groups to raise large amounts of money . In a 2000 ' ' Harper 's Magazine ' ' article , Ken Silverstein said that Dees has kept the SPLC focused on fighting anti-minority groups like the KKK , whose membership has declined to just 2,000 , instead of on issues like homelessness , mostly because the former issue makes for more lucrative fundraising . The article also claimed that the SPLC spends twice as much on fund-raising--$5.76 million last year--as it does on legal services for victims of civil rights abuses . ' ' Harper 's ' ' also pointed out that more than 95% of hate crimes are committed by lone wolves without any connection to militia groups the SPLC speaks of . In July 2007 , the SPLC filed suit against the Imperial Klans of America ( IKA ) in Meade County , where in July 2006 five Klansmen allegedly beat Jordan Gruver , a 16-year-old boy of Panamanian descent , at a Kentucky county fair . In 2008 , the SPLC and Dees were featured on ' ' National Geographic ' ' s ' ' Inside American Terror ' ' exploring their litigation against several branches of the Ku Klux Klan . # Litigation # The Southern Poverty Law Center has won multiple civil cases resulting in monetary awards for the plaintiffs . The SPLC has said it does not accept any portion of monetary judgments . Dees and the SPLC have been credited with devising innovative legal ways to cripple hate groups , including seizing their assets . # Young Men 's Christian Association # In 1969 , prior to founding the SPLC , Dees sued the Young Men 's Christian Association ( YMCA ) in Montgomery , Alabama at the request of civil rights activist Mary Louise Smith , whose son Vincent and nephew Edward the YMCA had refused to allow to attend its summer camp . The YMCA was , of course , a private organization and therefore presumptively not bound by the provisions of the Civil Rights Act of 1964 , which would have forbidden them to discriminate against children on the basis of race . However , Dees discovered that , in order to avoid desegregating its recreational facilities , the city of Montgomery had instead signed a secret agreement with the YMCA to operate them as private facilities but on the city 's behalf . This fact led the trial court to rule that the YMCA had a municipal charter and was therefore bound by the Fourteenth Amendment to the United States Constitution to desegregate its facilities . According to historian Timothy Minchin , Dees was emboldened by this victory when he founded the SPLC in 1971 . The United States Court of Appeals for the Fifth Circuit later affirmed the trial judge 's finding , reversing only his order that the YMCA use affirmative action to racially integrate its board of directors . # Vietnamese fishermen # In 1981 , the SPLC took Ku Klux Klan leader Louis Beam 's Klan-associated militia , the Texas Emergency Reserve ( TER ) , to court to stop racial harassment and intimidation of Vietnamese shrimpers in and around Galveston Bay . The Klan actions against the approximately 100 Vietnamese shrimpers in the area included a cross burning , sniper fire aimed at them , and arsonists burning their boats . In May 1981 U.S. District Court judge Gabrielle McDonald issued a preliminary injunction against the Klan , requiring them to cease intimidating , threatening , or harassing the Vietnamese . McDonald eventually found the TER and Beam guilty of tortious interference , violations of the Sherman Antitrust Act , and of various civil rights statutes and thus permanently enjoined them against violence , threatening behavior , and other harassment of the Vietnamese Shrimpers . The SPLC also uncovered an obscure Texas law that forbade private armies in that state . McDonald found that Beam 's organization violated it and hence ordered the TER to close its military training camp . # White Patriot Party # In 1982 armed members of the Carolina Knights of the Ku Klux Klan terrorized Bobby Person , a black prison guard and members of his family . They harassed and threatened others , including a white woman who had befriended blacks . In 1984 Person became the lead plaintiff in ' ' Person v. Carolina Knights of the Ku Klux Klan ' ' a lawsuit brought by the SPLC in the United States District Court for the Eastern District of North Carolina . The harassment and threats continued during litigation and the court issued an order prohibiting any person from interfering with other persons inside the courthouse . In January 1985 , the court issued a consent order that prohibited the group 's Grand Dragon , Glenn Miller , and his followers from operating a paramilitary organization , parading in black neighborhoods , and from harassing , threatening or harming any black person or white persons who associated with black persons . Subsequently , the court dismissed the plaintiff 's claim for damages . Within a year the court found Miller and his followers , now calling themselves the White Patriot Party , in criminal contempt for violating the consent order . Miller was sentenced to six months in prison followed by a three-year probationary period , during which he was banned from associating with members of any racist group such as the White Patriot Party . Miller refused to obey the terms of his probation . He made underground declarations of war against Jews and the federal government before being arrested again . Found guilty of weapons violations , he went to federal prison for three years . # United Klans of America # In 1987 , the SPLC successfully brought a civil case against the United Klans of America ( UKA ) for the 1981 lynching of Michael Donald in Mobile , Alabama by two of the UKA 's members . Unable to come up with the $7 million awarded by the jury , the UKA was forced to turn over its national headquarters to Donald 's mother , who then sold it for $51,875 and used the money to purchase her first house . # White Aryan Resistance # On November 13 , 1988 , in Portland , Oregon , three white supremacist members of East Side White Pride and White Aryan Resistance ( WAR ) beat Mulugeta Seraw to death . Seraw was an Ethiopian man who came to the United States to attend college . In October 1990 , the SPLC won a civil case on behalf of the Seraw 's family against WAR 's operator Tom Metzger and his son , John Metzger , for a total of $12.5 million . The Metzgers declared bankruptcy , and WAR went out of business . The cost of work for the trial was absorbed by the Anti-Defamation League as well as the SPLC . Metzger still makes payments to Seraw 's family . # Church of the Creator # In May 1991 , Harold Mansfield Jr , a black war veteran in the United States Navy , was murdered by a member of the neo-Nazi Church of the Creator ( now called the Creativity Movement ) . SPLC represented the victim 's family in a civil case and won a judgement of $1 million from the church in March 1994 . The church transferred ownership to William Pierce , head of the National Alliance , to avoid paying money to Mansfield 's heirs . The SPLC filed suit against Pierce for his role in the fraudulent scheme and won an $85,000 judgment against him in 1995 . The amount was upheld on appeal and the money was collected prior to Pierce 's death in 2002. # Christian Knights of the KKK # The SPLC won a $37.8 million verdict for Macedonia Baptist Church , a 100-year-old black church in Manning , South Carolina , against two Ku Klux Klan chapters and five Klansmen ( Christian Knights of the Ku Klux Klan and Invisible Empire , Inc. ) in July 1998 . The money was awarded stemming from arson convictions in which the Klan burned down the historic black church in 1995 . Morris Dees told the press , If we put the Christian Knights out of business , what 's that worth ? We do n't look at what we can collect . It 's what the jury thinks this egregious conduct is worth that matters , along with the message it sends . According to ' ' The Washington Post ' ' the amount is the largest-ever civil award for damages in a hate crime case . # Aryan Nations # In September 2000 , the SPLC won a $6.3 million judgment against the Aryan Nations from an Idaho jury who awarded punitive and compensatory damages to a woman and her son who were attacked by Aryan Nations guards . The lawsuit stemmed from the July 1998 attack when security guards at the Aryan Nations compound near Hayden Lake , in northern Idaho . The guards shot at Victoria Keenan and her son . Bullets struck their car several times , causing the car to crash . An Aryan Nations member then held the Keenans at gunpoint . As a result of the judgement , Richard Butler turned over the 20acre m2 compound to the Keenans , who then sold the property to a philanthropist who subsequently donated it to North Idaho College , which designated the land as a peace park . Because of the lawsuit , members of the AN drew up a plan to kill Dees , which was disrupted by the FBI . # Ten Commandments monument # In 2002 , the SPLC and the American Civil Liberties Union filed suit against Alabama Supreme Court Chief Justice Roy Moore for placing a two-ton display of the Ten Commandments in the rotunda of the Alabama Judicial Building . Moore , who had final authority over what decorations were to be placed in the Alabama State Judicial Building 's Rotunda , had installed a 5,280 pound ( 2400 kg ) granite block , three feet wide by three feet deep by four feet tall , of the Ten Commandments late at night without the knowledge of any other court justice . After defying several court rulings , Moore was eventually removed from the court , and the monument was removed as well . # Ranch rescue # On March 18 , 2003 , two illegal aliens from El Salvador , Edwin Alfredo Manca Gonzles and Ftima del Socorro Leiva Medina , were trespassing through a Texas ranch owned by Joseph Sutton . They were accosted by vigilantes known as Ranch Rescue who were recruited by Sutton to patrol the U.S.-Mexico border region nearby . According to the SPLC , Gonzles and Medina were held at gunpoint , and Gonzles was struck on the back of the head with a handgun , and a rottweiler was allowed to attack him . The SPLC said Gonzles and Medina were threatened with death and otherwise terrorized before being released . The El Salvadorans stated that the ranchers gave them water , cookies and a blanket before letting them go after about an hour . Ranch Rescuer Casey James Nethercott denied hitting either of the trespassers with a gun , and none of the vigilantes were convicted of pistol-whipping . In 2003 , SPLC , the Mexican American Legal Defense and Educational Fund , and local attorneys filed a civil suit , Leiva v. Ranch Rescue , in Jim Hogg County , Texas , against Ranch Rescue and several of its associates , seeking damages for assault and illegal detention . In April 2005 , SPLC obtained judgments totaling $1 million against Nethercott and Torre John Foote , Ranch Rescue 's leader . Those awards came six months after a $350,000 judgment in the same case and coincided with a $100,000 out-of-court settlement with Sutton . Nethercotts 70acre m2 Arizona property , which was Ranch Rescue 's headquarters , was seized to pay the judgment . Nethercott , previously convicted of assault in California , was sentenced to five years in prison for being a felon in possession of a firearm . SPLC staff worked closely with Texas prosecutors to obtain that conviction . # Billy Ray Johnson # Billy Ray Johnson , a black , mentally disabled man , was taken by four white males to a party where he was knocked unconscious then dropped on his head , referred to as a nigger , and left in a ditch bleeding . Due to the event , Johnson , 46 , who suffered serious , permanent brain injuries from the attack , will require care for the rest of his life . At a criminal trial the four men received sentences of 30 to 60 days in county jail . On April 20 , 2007 , Billy Ray Johnson was awarded $9 million in damages by a civil jury in Linden , Texas . The jury hoped that the verdict would improve race relations in the community stemming from a United States Department of Education investigation and other controversial verdicts . During the trial one of the defendants , Cory Hicks , referred to Johnson as it . # Imperial Klans of America # In November 2008 , the SPLC 's case against the Imperial Klans of America ( IKA ) , the nation 's second largest Klan organization , began in Meade County , Kentucky . The SPLC filed suit in July 2007 on behalf of Jordan Gruver and his mother against the IKA in Kentucky where in July 2006 , five Klansmen savagely beat Gruver at a Kentucky county fair . According to the lawsuit , five Klan members went to the Meade County Fairgrounds in Brandenburg , Kentucky , to hand out business cards and flyers advertising a ' white-only ' IKA function . Two members of the Klan started calling the 16-year-old boy of Panamanian descent a spic . Subsequently the boy , ( 5ft3 in and weighing 150 lb ) was beaten and kicked by the Klansmen ( one of whom was 6ft5in m and convert ) . As a result , the victim received two cracked ribs , a broken left forearm , multiple cuts and bruises and jaw injuries requiring extensive dental repair . In a related criminal case in February 2007 , Jarred Hensley and Andrew Watkins had been sentenced to three years in prison for beating Gruver . On November 14 , 2008 , an all-white jury of seven men and seven women awarded $1.5 million in compensatory damages and $1 million in punitive damages to the plaintiff against Ron Edwards , Imperial Wizard of the group , and Jarred Hensley , who participated in the attack . The two other defendants , Andrew Watkins and Joshua Cowles , previously agreed to confidential settlements and were dropped from the suit . # Advocacy # # Opposition to Arizona illegal immigration measure # The SPLC has spoken against Arizona SB 1070 , the anti-illegal immigration measure passed by the state of Arizona in 2010 , calling it brazenly unconstitutional and a civil rights disaster . In June 2012 , the U.S. Supreme Court ruled on the case , ' ' Arizona v. United States ' ' , upholding the provision requiring immigration status checks during law enforcement stops but striking down three other provisions as violations of the Supremacy Clause of the United States Constitution . # Education # # Tolerance.org # The SPLC 's initiatives include the website Tolerance.org , past winner of the international Webby Award . The site provides daily news on tolerance issues , educational games for children , guidebooks for activists , and resources for parents and teachers . The site 's ' ' Teaching Tolerance ' ' initiative is aimed at two different age groups of students with separate materials for teachers and parents . One portion of the project targets elementary school children , providing material on the history of the civil rights movement . The center 's material for elementary school children includes a publication entitled A fresh look at multicultural ' American English ' which explores the cultural history of common words . A project website includes an interactive program addressing such topics as Native American school mascots , displays of the Confederate flag , and the themes of popular music and entertainment , encouraging pupils to consider racial , gender , and sexual orientation sensitivities . A similar program aimed at middle and high school pupils includes a Mix it Up project urging readers to participate in school activities involving interaction between different social groups . Other features of this project includes political activism tips and reports highlighting student activism . The SPLC puts out a monthly publication typically focusing on a minority , feminist , or LGBT youth organization . Publications such as Ways to fight hate on campus suggest ideas for community activism and diversity education . ' ' Teaching Tolerance ' ' also provides advice to parents , encouraging multiculturalism in the upbringing of their children . A guide urges parents to examine the ' diversity profile ' of your children 's friends , to move to integrated and economically diverse neighborhoods , and to discourage children from playing with toys or adopting heroes that promote violence . The publication also advises parents to use culturally sensitive language ( such as the gender-neutral phrasing Someone Special Day instead of the traditional Mothers Day and Fathers Day ) and to make sure that cultural diversity ( is ) reflected in your home 's artwork , music and literature . # Documentaries # The SPLC also produces documentary films . Two have won Academy Awards for documentary short subject : ' ' Mighty Times : The Children 's March ' ' , in 2005 , and ' ' A Time for Justice ' ' in 1995 . Another film was ' ' Wall of Tolerance ' ' , starring Jennifer Welker . Five others have been nominated for awards . # Law enforcement training # The SPLC offers training for local , state and federal law enforcement officers by request , focusing on the history , background , leaders and activities of far-right extremists in the United States . # Tracking of hate groups and extremists # # Hate group listings # The SPLC maintains a list of ' ' hate groups ' ' defined as groups that ... have beliefs or practices that attack or malign an entire class of people , typically for their immutable characteristics . It says that hate group activities may include speeches , marches , rallies , meetings , publishing , leafleting , and criminal acts such as violence . It says not all groups so listed by the SPLC engage in criminal activity . The FBI has partnered with the SPLC and many other local and national organizations to establish rapport , share information , address concerns , and cooperate in solving problems . The SPLC reported that 939 hate groups were active in the United States in 2013 , down from 1007 in 2012 . These included : 186 separate Ku Klux Klan ( KKK ) groups with 52 websites 196 neo-Nazi groups with 89 websites 111 White nationalist groups with 190 websites 98 White power skinhead groups with 25 websites 39 Christian Identity groups with 37 websites 93 neo-Confederate groups with 25 websites 113 black separatist groups with 40 websites 90 additional groups divided by the SPLC into categories such as anti-gay , Holocaust denial , racist music , radical traditionalist Catholic , among other categories for designated hate groups , which maintained another 172 websites . Only organizations active in 2013 were counted , excluding those that appear to exist only on the Internet . J.M. Berger , writing for ' ' Foreign Policy ' ' , disputed the 2012 numbers and said that after merging separate groups of similar names the list of 1,007 becomes a list of 358 . # Anti-government patriot groups # The SPLC 's Intelligence Project states that it identified 1,360 anti-government ' Patriot ' groups that were active in 2012 The SPLC describes these groups as parts of an extremist Patriot Movement characterized by anti-government doctrines , conspiracy theories or opposition to the New World Order . The SPLC states that its listing of groups does not imply that such groups engage in violence or other criminal activities , or are racist . # Nativist extremist groups # The SPLC identified 38 groups which it lists as nativist extremist groups active in 2012 . These groups ( ordered by the number of groups ) were based in 13 states : Maryland ( 14 ) , California ( 5 ) , Arizona ( 3 ) , Texas ( 3 ) , Florida ( 2 ) , Missouri ( 2 ) , New Jersey ( 2 ) , North Carolina ( 2 ) , Oregon ( 1 ) , Rhode Island ( 1 ) , Pennsylvania ( 1 ) , Minnesota ( 1 ) , Georgia ( 1 ) . # Controversy # The SPLC 's listing of hate groups has been a source of some controversy . The designation of hate groups has inspired criticism from conservative elected officials and non-profits . In 2010 it was reported that 22 Republican lawmakers , among them Speaker Boehner and Representative Bachmann , three governors , and a number of conservative organizations took out full-page ads in two Washington papers castigating the SPLC for ' character assassination ' by listing the conservative Family Research Council as a hate group . Critics including journalist Ken Silverstein and political fringe movements researcher Laird Wilcox have accused the SPLC of an incautious approach to assigning the label . In the wake of an August 2012 shooting at the headquarters of the Family Research Council , some columnists criticized the SPLC 's listing of the Family Research Council as an anti-gay hate group while others defended the categorization . The SPLC defended its listing of anti-gay hate groups , stating that groups were selected not because of their stances on political issues such as gay marriage , but rather on their propagation of known falsehoods about LGBT people .. that have been thoroughly discredited by scientific authorities . J.M. Berger of ' ' Foreign Policy ' ' disputes SPLC analysis in its ' ' Intelligence Report ' ' and ' ' Year in Hate and Extremism ' ' reports and believes the SPLC carries a political slant . He also questions the methodologies used by the SPLC and suggests that it overstates the presence of extremists in the United States . Jesse Walker , writing in the libertarian magazine ' ' Reason ' ' , charges the SPLC with indiscrimination and fear-mongering in its portrayal of Patriot groups . # ' ' Intelligence Report ' ' # Since 1981 , the SPLC 's Intelligence Project has published a quarterly ' ' Intelligence Report ' ' that monitors what the SPLC considers radical right hate groups and extremists in the United States . The ' ' Intelligence Report ' ' provides information regarding organizational efforts and tactics of these groups , and has been cited by scholars as reliable and as the most comprehensive source on U.S. right-wing extremism and hate groups . In addition to the ' ' Intelligence Report ' ' , the SPLC publishes ' ' HateWatch Weekly ' ' , a newsletter that follows racism and extremism , and the ' ' Hatewatch ' ' blog , whose subtitle is Keeping an Eye on the Radical Right . and Southern Gothic , by David Holthouse and Casey Sanchez , took second place for Feature Reporting in the Magazine Division in 2007 . On March 20 , 2009 , the ' ' Intelligence Project ' ' received a Distinguished Public Service Award from the American Immigration Law Foundation for its outstanding work covering the anti-immigration movement . # ' ' Year in Hate and Extremism ' ' # Since 2001 , the SPLC has released an annual issue of the ' ' Intelligence Project ' ' called ' ' Year in Hate ' ' later renamed ' ' Year in Hate and Extremism ' ' , in which they present statistics on the numbers of hate groups in America . The current format of the report covers racial hate groups , nativist hate groups , and other right-wing extremist groups such as groups within the Patriot Movement . # Academic assessment # In their study of the white separatist movement in the United States , sociologists Betty A. Dobratz and Stephanie L. Shanks-Meile referred to the SPLC 's ' ' Klanwatch Intelligence Reports ' ' in saying we relied on the SPLC and ADL for general information , but we have noted differences between the way events have been reported and what we saw at rallies . For instance , events were sometimes portrayed in ' ' Klanwatch Intelligence Reports ' ' as more militant and dangerous with higher turnouts than we observed . Rory McVeigh , the chair of the University of Notre Dame Sociology Department , wrote that its outstanding reputation is well established , and the SPLC has been an excellent source of information for social scientists who study racist organizations . # Finances # The SPLC 's activities including litigation are supported by fundraising efforts , and it does not accept any fees or share in legal judgments awarded to clients it represents in court . Starting in 1974 , the SPLC set aside money for its endowment because it was convinced that the day ( would ) come when nonprofit groups ( would ) no longer be able to rely on support through mail because of posting and printing costs . The SPLC has received criticism for perceived disproportionate endowment reserves and misleading fundraising practices . In 1994 the ' ' Montgomery Advertiser ' ' ran a series reporting that the SPLC was financially mismanaged and employed misleading fundraising practices . In response co-founder Joe Levin stated : The ' ' Advertiser 's ' ' lack of interest in the center 's programs and its obsessive interest in the center 's financial affairs and Mr. Dees ' personal life makes it obvious to me that the ' ' Advertiser ' ' simply wants to smear the center and Mr. Dees . The series was a finalist for but did not win a 1995 Pulitzer Prize in Explanatory Journalism . In 1996 ' ' USA Today ' ' called the SPLC the nation 's richest civil rights organization , with $68 million in assets at the time . According to Charity Navigator , SPLC 's 2009 outlays fell into the following categories : program expenses of 67.5% , administrative expenses of 13.4% , and fundraising expenses of 18.9% . In October 2013 the SPLC reported its endowment at $281.1 million . # Notes # : At the time of the case Alabama was under the jurisdiction of the Fifth Circuit . In 1981 the circuit was split and Alabama was added to the newly created Eleventh
@@31043 In common law legal systems , a trust is a relationship whereby property is held by one party for the benefit of another . A trust is created by a settlor , who transfers some or all of his or her property to a trustee . The trustee holds that property for the trust 's beneficiaries . Trusts have existed since Roman times and have become one of the most important innovations in property law . An owner placing property into trust turns over part of his or her bundle of rights to the trustee , separating the property 's legal ownership and control from its equitable ownership and benefits . This may be done for tax reasons or to control the property and its benefits if the settlor is absent , incapacitated , or dead . Trusts are frequently created in wills , defining how money and property will be handled for children or other beneficiaries . The trustee is given legal title to the trust property , but is obligated to act for the good of the beneficiaries . The trustee may be compensated and have expenses reimbursed , but otherwise must turn over all profits from the trust properties . Trustees who violate this fiduciary duty are self-dealing . Courts can reverse self dealing actions , order profits returned , and impose other sanctions . The trustee may be either an individual , a company , or a public body . There may be a single trustee or multiple co-trustees . The trust is governed by the terms under which it was created . In most jurisdictions , this requires a contractual trust agreement or deed . # History # Roman law had a well-developed concept of the trust ( ' ' fideicommissum ' ' ) in terms of testamentary trusts created by wills but never developed the concept of the inter vivos ( living ) trusts which apply while the creator lives . This was created by later common law jurisdictions . The waqf is a similar institution in Islamic law , restricted to charitable trusts . Personal trust law developed in England at the time of the Crusades , during the 12th and 13th centuries . In medieval English trust law , the settlor was known as the feoffor to uses while the trustee was known as the feoffee to uses and the beneficiary was known as the cestui que use , or cestui que trust . At the time , land ownership in England was based on the feudal system . When a landowner left England to fight in the Crusades , he conveyed ownership of his lands in his absence to manage the estate and pay and receive feudal dues , on the understanding that the ownership would be conveyed back on his return . However , Crusaders often encountered refusal to hand over the property upon their return . Unfortunately for the Crusader , English common law did not recognize his claim . As far as the King 's courts were concerned , the land belonged to the trustee , who was under no obligation to return it . The Crusader had no legal claim . The disgruntled Crusader would then petition the king , who would refer the matter to his Lord Chancellor . The Lord Chancellor could decide a case according to his conscience . At this time , the principle of equity was born . The Lord Chancellor would consider it unconscionable that the legal owner could go back on his word and deny the claims of the Crusader ( the true owner ) . Therefore , he would find in favor of the returning Crusader . Over time , it became known that the Lord Chancellor 's court ( the Court of Chancery ) would continually recognize the claim of a returning Crusader . The legal owner would hold the land for the benefit of the original owner , and would be compelled to convey it back to him when requested . The Crusader was the beneficiary and the acquaintance the trustee . The term use of land was coined , and in time developed into what we now know as a ' ' trust ' ' . Antitrust law emerged in the 19th century when industries created trust ( monopoly ) # Significance # The trust is widely considered to be the most innovative contribution of the English legal system . Today , trusts play a significant role in most common law systems , and their success has led some civil law jurisdictions to incorporate trusts into their civil codes . Curaao for example has introduced a trust in its Civil Code from 1 January 2012 , which only allows express trusts , constituted by a notarial deed . France has recently added a similar , though not quite comparable , notion to its own law with ' ' la fiducie ' ' , which was modified in 2009 ; ' ' la fiducie ' ' , unlike a trust , is a contract . Trusts are widely used internationally , especially in countries within the English law sphere of influence , and whilst most civil law jurisdictions do not generally contain the concept of a trust within their legal systems , they do recognise the concept under the Hague Convention on the Law Applicable to Trusts and on their Recognition ( partly only the extent that they are parties thereto ) . The Hague Convention also regulates conflict of trusts . Although trusts are often associated with intrafamily wealth transfers , they have become very important in American capital markets , particularly through pension funds ( essentially always trusts ) and mutual funds ( often trusts ) . # Basic principles # # Overview # Property of any sort may be held in a trust . The uses of trusts are many and varied , for both personal and commercial reasons , and trusts may provide benefits in estate planning , asset protection , and taxes . Living trusts may be created during a person 's life ( through the drafting of a trust instrument which is filed in a court ) or after death in a will . In a relevant sense , a trust can be viewed as a generic form of a corporation where the settlors ( investors ) are also the beneficiaries . This is particularly evident in the Delaware business trust , which could theoretically , with the language in the governing instrument , be organized as a cooperative corporation , limited liability corporation , or perhaps even a nonprofit corporation , although traditionally the Massachusetts business trust has been commonly used . One of the most significant aspects of trusts is the ability to partition and shield assets from the trustee , multiple beneficiaries , and their respective creditors ( particularly the trustee 's creditors ) , making it bankruptcy remote , and leading to its use in pensions , mutual funds , and asset securitization as well protection of individual spendthrifts through the spendthrift trust . # Terms # Appointer : This is the person who can appoint a new trustee or remove an existing one . This person is usually mentioned in the trust deed . Appointment : In trust law , appointment often has its everyday meaning . It is common to talk of the appointment of a trustee , for example . However , appointment also has a technical trust law meaning , either : *the act of ' ' appointing ' ' ( i.e. giving ) an asset from the trust to a beneficiary ( usually where there is some choice in the mattersuch as in a discretionary trust ) ; or *the name of the document which gives effect to the appointment . : The trustee 's right to do this , where it exists , is called a power of appointment . Sometimes , a power of appointment is given to someone other than the trustee , such as the settlor , the protector , or a beneficiary . As Trustee For ( ATF ) : This is the legal term used to imply that an entity is acting as a trustee . Beneficiary : A beneficiary is anyone who receives benefits from any assets the trust owns . In Its Own Capacity ( IIOC ) : This term refers to the fact that the trustee is acting its own . Protector : A protector may be appointed in an express , inter vivos trust , as a person who has some control over the trusteeusually including a power to dismiss the trustee and appoint another . The legal status of a protector is the subject of some debate . No-one doubts that a ' ' trustee ' ' has fiduciary responsibilities . If a ' ' protector ' ' also has fiduciary responsibilities then the courtsif asked by beneficiariescould order him or her to act in the way the court decrees . However , a protector is unnecessary to the nature of a trustmany trusts can and do operate without one . Also , protectors are comparatively new , while the nature of trusts has been established over hundreds of years . It is therefore thought by some that protectors have fiduciary duties , and by others that they do not . The case law has not yet established this point . Settlor : This is the person who creates the trust . Trust deed : A trust deed is a legal document that defines the trust such as the trustee , beneficiaries , settlor and appointer , and the terms and conditions of the agreement . Trust distributions : A trust distribution is any income or asset that is given out to the beneficiaries of the trust . Trustee : A person ( either an individual , a corporation or more than one of either ) who administers a trust . A trustee is considered a fiduciary and owes the highest duty under the law to protect trust assets from unreasonable loss for the trust 's beneficiaries . # Creation # Trusts may be created by the expressed intentions of the settlor ( express trusts ) or they may be created by operation of law known as implied trusts . An implied trust is one created by a court of equity because of acts or situations of the parties . Implied trusts are divided into two categories : resulting and constructive . A resulting trust is implied by the law to work out the presumed intentions of the parties , but it does not take into consideration their expressed intent . A constructive trust is a trust implied by law to work out justice between the parties , regardless of their intentions . Typically a trust can be created in the following ways : #a written trust instrument created by the settlor and signed by both the settlor and the trustees ( often referred to as an ' ' inter vivos ' ' or living trust ) ; #an oral declaration ; #the will of a decedent , usually called a testamentary trust ; or #a court order ( for example in family proceedings ) . In some jurisdictions certain types of assets may not be the subject of a trust without a written document . # Formalities # Generally , a trust requires three certainties , as determined in ' ' Knight v Knight ' ' : # Intention . There must be a clear intention to create a trust ( ' ' Re Adams and the Kensington Vestry ' ' ) # Subject Matter . The property subject to the trust must be clearly identified ( ' ' Palmer v Simmonds ' ' ) . One may not , for example state , settle the majority of my estate , as the precise extent can not be ascertained . Trust property may be any form of specific property , be it real or personal , tangible or intangible . It is often , for example , real estate , shares or cash . # Objects . The beneficiaries of the trust must be clearly identified , or at least be ascertainable ( ' ' Re Hain 's Settlement ' ' ) . In the case of discretionary trusts , where the trustees have power to decide who the beneficiaries will be , the settlor must have described a clear class of beneficiaries ( ' ' McPhail v Doulton ' ' ) . Beneficiaries may include people not born at the date of the trust ( for example , my future grandchildren ) . Alternatively , the object of a trust could be a charitable purpose rather than specific beneficiaries . # Trustees # A trust may have multiple trustees , and these trustees are the legal owners of the trust 's property , but have a fiduciary duty to beneficiaries and various duties , such as a duty of care and a duty to inform . If trustees do not adhere to these duties , they may be removed through a legal action . The trustee may be either a person or a legal entity such as a company , but typically the trust itself is not an entity and any lawsuit must be against the trustees . A trustee has many rights and responsibilities which vary based on the jurisdiction and trust instrument . If a trust lacks a trustee , a court may appoint a trustee . The trustees administer the affairs attendant to the trust . The trust 's affairs may include prudently investing the assets of the trust , accounting for and reporting periodically to the beneficiaries , filing required tax returns , and other duties . In some cases dependent upon the trust instrument , the trustees must make discretionary decisions as to whether beneficiaries should receive trust assets for their benefit . A trustee may be held personally liable for problems , although fiduciary liability insurance similar to directors and officers liability insurance can be purchased . For example , a trustee could be liable if assets are not properly invested . However , in the United States , similar to directors and officers , an exculpatory clause may minimize liability ; although this was previously held to be against public policy , this position has changed . In the United States , the Uniform Trust Code provides for reasonable compensation and reimbursement for trustees subject to review by courts , although trustees may be unpaid . Commercial banks acting as trustees typically charge about 1% of assets under management . # Beneficiaries # The beneficiaries are beneficial ( or equitable ) owners of the trust property . Either immediately or eventually , the beneficiaries will receive income from the trust property , or they will receive the property itself . The extent of a beneficiary 's interest depends on the wording of the trust document . One beneficiary may be entitled to income ( for example , interest from a bank account ) , whereas another may be entitled to the entirety of the trust property when he attains the age of twenty-five years . The settlor has much discretion when creating the trust , subject to some limitations imposed by law . # Purposes # Common purposes for trusts include : # Privacy : Trusts may be created purely for privacy . The terms of a will are public and the terms of a trust are not . In some families , this alone makes the use of trusts ideal . # Spendthrift protection : Trusts may be used to protect beneficiaries ( for example , one 's children ) against their own inability to handle money . These are especially attractive for spendthrifts . Courts may generally recognize spendthrift clauses against trust beneficiaries and their creditors , but not against creditors of a settlor. # Wills and estate planning : Trusts frequently appear in wills ( indeed , technically , the administration of every deceased 's estate is a form of trust ) . Conventional wills typically leave assets to the deceased 's spouse ( if any ) , and then to the children equally . If the children are under 18 , or under some other age mentioned in the will ( 21 and 25 are common ) , a trust must come into existence until the contingency age is reached . The executor of the will is ( usually ) the trustee , and the children are the beneficiaries . The trustee will have powers to assist the beneficiaries during their minority . # Charities : In some common law jurisdictions all charities must take the form of trusts . In others , corporations may be charities also . In most jurisdictions , charities are tightly regulated for the public benefit ( in England , for example , by the Charity Commission ) . # Unit trusts : The trust has proved to be such a flexible concept that it has proved capable of working as an investment vehicle : the unit trust . # Pension plans : Pension plans are typically set up as a trust , with the employer as settlor , and the employees and their dependents as beneficiaries . # Remuneration trusts : Trusts for the benefit of directors and employees or companies or their families or dependents . This form of trust was developed by Paul Baxendale-Walker and has since gained widespread use . # Corporate structures : Complex business arrangements , most often in the finance and insurance sectors , sometimes use trusts among various other entities ( e.g. , corporations ) in their structure . # Asset protection : Trusts may allow beneficiaries to protect assets from creditors as the trust may be bankruptcy remote . For example , a discretionary trust , of which the settlor may be the protector and a beneficiary , but not the trustee and not the sole beneficiary . In such an arrangement the settlor may be in a position to benefit from the trust assets , without owning them , and therefore in theory protected from creditors . In addition , the trust may attempt to preserve anonymity with a completely unconnected name ( e.g. , The Teddy Bear Trust ) . These strategies are ethically and legally controversial . # Tax planning : The tax consequences of doing anything using a trust are usually different from the tax consequences of achieving the same effect by another route ( if , indeed , it would be possible to do so ) . In many cases , the tax consequences of using the trust are better than the alternative , and trusts are therefore frequently used for legal tax avoidance . ' ' For an example see the nil-band discretionary trust , explained at Inheritance Tax ( United Kingdom ) . ' ' # Co-ownership : Ownership of property by more than one person is facilitated by a trust . In particular , ownership of a matrimonial home is commonly effected by a trust with both partners as beneficiaries and one , or both , owning the legal title as trustee . # Construction law : In Canada and Minnesota monies owed by employers to contractors or by contractors to subcontractors on construction projects must by law be held in trust . In the event of contractor insolvency , this makes it much more likely that subcontractors will be paid for work completed . # Types # # Alphabetic list of trust types # Trusts go by many different names , depending on the characteristics or the purpose of the trust . Because trusts often have multiple characteristics or purposes , a single trust might accurately be described in several ways . For example , a living trust is often an express trust , which is also a revocable trust , and might include an incentive trust , and so forth . Constructive trust : Unlike an express trust , a constructive trust is not created by an agreement between a settlor and the trustee . A constructive trust is imposed by the law as an equitable remedy . This generally occurs due to some wrongdoing , where the wrongdoer has acquired legal title to some property and can not in good conscience be allowed to benefit from it . A constructive trust is , essentially , a legal fiction . For example , a court of equity recognizing a plaintiff 's request for the equitable remedy of a constructive trust may decide that a constructive trust has been created and simply order the person holding the assets to deliver them to the person who rightfully should have them . The constructive trustee is not necessarily the person who is guilty of the wrongdoing , and in practice it is often a bank or similar organization . The distinction may be finer than the preceding exposition in that there are also said to be two forms of constructive trust , the institutional constructive trust and the remedial constructive trust . The latter is an equitable remedy imposed by law being truly remedial ; the former arising due to some defect in the transfer of property . Discretionary trust : In a discretionary trust , certainty of object is satisfied if it can be said that there is a criterion which a person must satisfy in order to be a beneficiary ( i.e. , whether there is a ' class ' of beneficiaries , which a person can be said to belong to ) . In that way , persons who satisfy that criterion ( who are members of that class ) can enforce the trust . ' ' Re Badens Deed Trusts ' ' ; ' ' McPhail v Doulton ' ' Directed trust : In these types , a ' ' directed trustee ' ' is directed by a number of other trust participants in implementing the trust 's execution ; these participants may include a distribution committee , trust protector , or investment advisor . The directed trustee 's role is administrative which involves following investment instructions , holding legal title to the trust assets , providing fiduciary and tax accounting , coordinating trust participants and offering dispute resolution among the participants Dynasty trust ( also known as a generation-skipping trust ) : A type of trust in which assets are passed down to the grantor 's grandchildren , not the grantor 's children . The children of the grantor never take title to the assets . This allows the grantor to avoid the estate taxes that would apply if the assets were transferred to his or her children first . Generation-skipping trusts can still be used to provide financial benefits to a grantor 's children , however , because any income generated by the trust 's assets can be made accessible to the grantor 's children while still leaving the assets in trust for the grandchildren . Express trust : An express trust arises where a settlor deliberately and consciously decides to create a trust , over their assets , either now , or upon his or her later death . In these cases this will be achieved by signing a trust instrument , which will either be a will or a trust deed . Almost all trusts dealt with in the trust industry are of this type . They contrast with resulting and constructive trusts . The intention of the parties to create the trust must be shown clearly by their language or conduct . For an express trust to exist , there must be certainty to the objects of the trust and the trust property . In the USA Statute of Frauds provisions require express trusts to be evidenced in writing if the trust property is above a certain value , or is real estate . Fixed trust : In a ' ' fixed trust ' ' , the entitlement of the beneficiaries is fixed by the settlor . The trustee has little or no discretion . Common examples are : *a trust for a minor ( to x if she attains 21 ) ; *a life interest ( to pay the income to x for her lifetime ) ; and *a remainder ( to pay the capital to y after the death of x ) Grantor retained annuity trust ( GRAT ) : GRAT is an irrevocable trust whereby a grantor transfers asset(s) , as a gift , into a trust and receives an annual payment from the trust for a period of time specified in the trust instrument . At the end of the term , the financial property is transferred ( tax-free ) to the named beneficiaries . This trust is commonly used in the U.S. to facilitate large financial gifts that are not subject to a gift tax . Hybrid trust : A ' ' hybrid trust ' ' combines elements of both fixed and discretionary trusts . In a hybrid trust , the trustee must pay a certain amount of the trust property to each beneficiary fixed by the settlor . But the trustee has discretion as to how any remaining trust property , once these fixed amounts have been paid out , is to be paid to the beneficiaries . Implied trust : An implied trust , as distinct from an express trust , is created where some of the legal requirements for an express trust are not met , but an intention on behalf of the parties to create a trust can be presumed to exist . A resulting trust may be deemed to be present where a trust instrument is not properly drafted and a portion of the equitable title has not been provided for . In such a case , the law may raise a resulting trust for the benefit of the grantor ( the creator of the trust ) . In other words , the grantor may be deemed to be a beneficiary of the portion of the equitable title that was not properly provided for in the trust document . Incentive trust : A trust that uses distributions from income or principal as an incentive to encourage or discourage certain behaviors on the part of the beneficiary . The term incentive trust is sometimes used to distinguish trusts that provide fixed conditions for access to trust funds from discretionary trusts that leave such decisions up to the trustee . Inter vivos trust ( or living trust ) : A settlor who is living at the time the trust is established creates an ' ' inter vivos ' ' trust . Irrevocable trust : In contrast to a revocable trust , an irrevocable trust is one in which the terms of the trust can not be amended or revised until the terms or purposes of the trust have been completed . Although in rare cases , a court may change the terms of the trust due to unexpected changes in circumstances that make the trust uneconomical or unwieldy to administer , under normal circumstances an irrevocable trust may not be changed by the trustee or the beneficiaries of the trust . Offshore trust : Strictly speaking , an offshore trust is a trust which is resident in any jurisdiction other than that in which the settlor is resident . However , the term is more commonly used to describe a trust in one of the jurisdictions known as offshore financial centers or , colloquially , as tax havens . Offshore trusts are usually conceptually similar to onshore trusts in common law countries , but usually with legislative modifications to make them more commercially attractive by abolishing or modifying certain common law restrictions . By extension , onshore trust has come to mean any trust resident in a high-tax jurisdiction . Personal injury trust : A personal injury trust is any form of trust where funds are held by trustees for the benefit of a person who has suffered an injury and funded exclusively by funds derived from payments made in consequence of that injury . Private and public trusts : A ' ' private trust ' ' has one or more particular individuals as its beneficiary . By contrast , a ' ' public trust ' ' ( also called a ' ' charitable trust ' ' ) has some charitable end as its beneficiary . In order to qualify as a charitable trust , the trust must have as its object certain purposes such as alleviating poverty , providing education , carrying out some religious purpose , etc . The permissible objects are generally set out in legislation , but objects not explicitly set out may also be an object of a charitable trust , by analogy . Charitable trusts are entitled to special treatment under the law of trusts and also the law of taxation . Protective trust : Here the terminology is different between the UK and the USA : *In the UK , a protective trust is a life interest that terminates upon the happening of a specified event ; such as the bankruptcy of the beneficiary , or any attempt by an individual to dispose of his or her interest . They have become comparatively rare . *In the USA , a ' ' protective trust ' ' is a type of trust that was devised for use in estate planning . ( In another jurisdiction this might be thought of as one type of asset protection trust . ) Often a person , ' ' A ' ' , wishes to leave property to another person ' ' B ' ' . ' ' A ' ' , however , fears that the property might be claimed by creditors before ' ' A ' ' dies , and that therefore ' ' B ' ' would receive none of it . ' ' A ' ' could establish a trust with ' ' B ' ' as the beneficiary , but then ' ' A ' ' would not be entitled to use of the property before they died . Protective trusts were developed as a solution to this situation . ' ' A ' ' would establish a trust with both ' ' A ' ' and ' ' B ' ' as beneficiaries , with the trustee instructed to allow ' ' A ' ' use of the property until they died , and thereafter to allow its use to ' ' B ' ' . The property is then safe from being claimed by ' ' A ' '