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Text File | 1994-08-02 | 16KB | 310 lines

THE LAW

Law can be defined broadly as a system of standards and rules
of civil society:  standards of human conduct that impose
obligations and grant corresponding rights, and institutional
rules regarding the ascertainment, creation, modification, and
enforcement of these standards.  The question "What is law?"
has elicited a myriad of answers throughout human history,
ranging from the Old Testament's assertion of law as the will
of God to the thesis of Karl MARX and Friedrich ENGELS that law
is an expression of class ideology.

CONCEPTIONS OF LAW

Notwithstanding the marked historical diversity in conceptions
of law, many if not most of the conceptions of law can be
placed in one of six broad categories:  natural law, legal
positivism, historical jurisprudence, sociological
jurisprudence, Marxism, and legal realism.

Like Western philosophy in general, philosophy of law in
particular first emerged in ancient Greece.  In the 5th century
BC the SOPHISTS and SOCRATES, along with his followers, took up
the question of the nature of law.  Both recognized a
distinction between things that exist by nature (physis) and
those that exist by human-made convention (nomos).  The
Sophists, however, tended to place law in the latter category,
whereas Socrates put it in the former, as did PLATO and
ARISTOTLE.  Thus began the debate that continues even today
over whether the essence of law is nature and reason on the one
hand or convention and will on the other hand.  Thinkers who
believe the former belong to what can be loosely called the
tradition of NATURAL LAW, and those who assert the latter
belong to the tradition of legal positivism.

Natural Law and Legal Positivism

All of the early political philosophers were deeply concerned
with the nature of justice and good government.  The idea of
natural law can be found in Plato's concept of the just
state--governed by the good and the wise--which in his view
reflects the naturally hierarchical structure of human society.
Governed by wisdom, the ideal state has no need of conventional
law because wisdom itself is the recognition of the primacy of
natural order.  Aristotle made a distinction, however, between
paramount natural law that establishes general precepts and
human-made law that merely imposes sanctions for violations of
those precepts.  Marcus Tullius CICERO, a Roman statesman and
politician who was also a Stoic legal
philosopher, put forward the first full-blown theory of natural
law, in his Commonwealth (51 BC):  "True law is right reason in
accord with nature;  it is of universal application, unchanging
and everlasting...."

Later, Saint AUGUSTINE combined Stoic legal thinking with
Christian philosophy by identifying eternal, divine law with
God's reason and will and by considering human law as being
derived from and limited by divine law.  The natural-law
tradition culminated in the theory of Saint Thomas AQUINAS,
which synthesized Aristotelian, Stoic, ROMAN LAW, and Christian
elements.  Aquinas formulated a fourfold classification of
types of law:  (1) eternal law--God's plan for the universe;
(2) natural law--that part of the eternal law in which humans
participate by their reason;  (3) divine law--God's direct
revelation to humankind through the scriptures;  and (4) human
law--particular determinations of certain matters arrived at
through the use of reason from the general precepts of the
natural law.  Aquinas also argued--as Cicero had done--that an
unjust law was not a genuine law but rather an act of violence.
Later thinkers who may be placed in the natural-law tradition
include Hugo GROTIUS, Thomas HOOKER, Gottfried LEIBNIZ, Baruch
SPINOZA, Jean Jacques ROUSSEAU, and Jacques MARITAIN.

In marked contrast to natural-law jurists, legal positivists
such as Thomas HOBBES argued that the essence of law is the
command or will of the sovereign and that an "unjust law" is a
contradiction in terms because the existing law is itself the
standard of justice.  Jean BODIN had anticipated Hobbes in the
former respect when he claimed that "law is nothing else than
the command of the sovereign in his exercise of sovereign
power." Bodin had added, however, that the prince "has no power
to exceed the law of nature," and he expected natural law to be
found in constitutional restraints.  Thus Bodin had not broken
unequivocally from the natural-law tradition.  John LOCKE's
criticism of Hobbesian theory set the stage for modern theories
of CIVIL DISOBEDIENCE and for independent government in the
American colonies.

Many legal positivists after Hobbes have backed down from his
extreme claims.  For example, Jeremy BENTHAM and John AUSTIN
agreed that law was the command of the sovereign but rejected
the idea that law was necessarily the standard of justice or
morality.  Bentham was more interested in the law's utility in
providing the greatest happiness for the greatest number.  Hans
Kelsen (1881-1973) and the English legal philosopher H.  L.  A.
Hart repudiated the command theory of law, arguing respectively
that laws are essentially derived from norms for the creation
of law and rules that arise from society.  Nonetheless the
central point of contention between natural-law jurists and
legal positivists remains the same:  the former insist on a
necessary connection between legal validity and moral value,
whereas the latter hold that no such connection is necessary.
As Hart put it in The Concept of Law (1961), natural law
jurists hold that "there are certain principles of human
conduct, awaiting discovery by human reason, with which
man-made law must conform if it is to be valid," whereas legal
positivists contend that "it is in no sense a necessary truth
that laws reproduce or satisfy certain demands of morality
though in fact they have often done so."

Historical Jurisprudence

In contrast with both natural-law jurists and legal
positivists, members of the historical school of jurisprudence,
most notably Friedrich Karl von SAVIGNY, maintained that "an
organic connection {exists} between law and the nature and
character of a people." In his view legislation is relatively
unimportant except insofar as it declares customary law, which
is the truly living law.  Thus the spirit of the people and not
the commands of the sovereign or right reason in accord with
nature constitutes the essence of law.  Other important
juridical historians include Otto Friedrich von GIERKE, Sir
Henry MAINE, and Frederick William MAITLAND.  MONTESQUIEU may
also be placed in this school, although he preceded it in time.
Sociological Jurisprudence

Akin to historical jurisprudence is sociological jurisprudence,
which can be traced to the writings of Rudolf von Jhering
(1818-92).  He rejected Savigny's theory on the ground that the
latter, in viewing law as a spontaneous expression of
subconscious forces, overlooked the importance of conscious
human purposes and the pursuit of interests embodied in the
law.  Jhering also emphasized that law must be understood in
the context of social life.  He thus foreshadowed the
jurisprudence-of-interests school of thought and sociological
jurisprudence.  Both strains of Jhering's thought influenced
the jurisprudential theory of Roscoe POUND and other American
sociological jurists, who focused on the notion of "social
engineering" law as a means of social control and the
relationship between law and society.

Marxism

In contrast to historical and sociological jurists, Marxist
jurists stress the relationship between law and the economic
aspects of society rather than society generally and emphasize
the pursuit of class interests instead of interests generally.
Responding to critics, Marx and Engels wrote in The Communist
Manifesto (1848):  "Your law is but the will of your class
exalted into statutes, a will which acquires its content from
the material conditions of {the} existence of your class."
Important Marxists who have refined the theory of law put
forward by Marx and Engels include Andrei VYSHINSKY, E.
Pashukanis (1891-1938), and Karl Renner (1870-1950).

Legal Realism

Legal realism, which has flourished in America, has been more
of a movement than a school of thought.  Its fundamental tenets
were anticipated by Justice Oliver Wendell HOLMES, Jr., in the
following remarks:  "the life of the law has not been logic;
it has been experience" and "prophecies of what courts will do
in fact, and nothing more pretentious, are what I mean by law."
Like sociological jurists, legal realists revolted against
analytic jurisprudence and formalism, or mechanical
jurisprudence, but the realists were somewhat more extreme than
the sociological jurists in their claims.  They even went so
far as to claim that legal rules are myths and that laws are
really nothing more than particular judicial decisions.
Realists combined behaviorism with this nominalism and thus
aspired to the scientific study of law.  The most influential
of American legal realists include Karl Llewellyn (1893-1962),
Jerome Frank (1889-1957), and Thurman Arnold (1891-1969).  The
most outspoken of its critics include Lon Fuller (b.1902), H.
L.A.  Hart, and Ronald Dworkin (b.1931).

Types of Law

Traditionally, law has been divided into public law and private
law.  Public and private laws that set forth the substance of
rights and obligations are sometimes called substantive law in
order to distinguish them from LEGAL PROCEDURE;  the latter
specifies the methods to be followed in adjudicating
substantive law cases in order to ensure they are conducted in
a manner protective of the rights of the participants.  If
procedural law relates to how the rights and duties of
substantive law are to be vindicated and enforced, substantive
law pertains to what the law is on a given matter.

Public Law
Public law concerns the structures, powers, and operations of a
government, the rights and duties of citizens in relation to
the government, and the relationships among nations.  It can be
divided further into constitutional law, ADMINISTRATIVE LAW,
CRIMINAL LAW, and INTERNATIONAL LAW.

Constitutional law, the fundamental or paramount law of a
nation, is derived from the nation's CONSTITUTION, which
comprehends the body of rules in accordance with which the
powers of government are exercised.  Constitutions may be
either written or unwritten--America's is an example of the
former, England's of the latter.  In some nations, courts have
the power of JUDICIAL REVIEW, whereby they declare
unconstitutional and therefore void laws that contravene the
provisions or arrangements of the constitution.

Administrative law includes laws governing the organization and
operation of agencies of the executive branch of government,
the substantive and procedural rules that these agencies
formulate and apply pursuant to their regulatory and other
administrative functions, and COURT decisions involving public
agencies and private citizens.

Criminal law consists of laws that impose obligations to do or
forbear from doing certain things, the infraction of which is
considered to be an offense not merely against the immediate
victim but also against society.  Most such laws are backed up
by sanctions or punishments, which are applied in the event of
conviction.  Major breaches of the criminal law, usually
defined as those punishable by imprisonment for more than 1
year, are termed FELONIES.  Less serious crimes, called
MISDEMEANORS, are punishable by imprisonment for a shorter
period or by fines or both.

Finally, international law concerns the relationships among
nations, including the use of the high seas, INTERNATIONAL
TRADE, boundary disputes, warfare methods, and the like.  Some
legal theorists question whether international law is genuine
law because it lacks an international legislature, centrally
organized sanctions, and courts with involuntary jurisdiction,
all of which characterize national legal systems.

Private Law

Unlike public law, private law does not involve government
directly but rather indirectly as an adjudicator between
disputing parties.  Private law provides rules to be applied
when one person claims that another has injured his or her
person, property, or reputation or has failed to carry out a
valid legal obligation.  Private law also includes laws that
confer powers or capabilities to create structures of
obligations and rights on individuals who wish to achieve given
legal objectives.

On the basis of the types of legal rights and obligations
involved, private law is conventionally subdivided into six
main categories:  (1) TORT law;  (2) PROPERTY law;  (3)
CONTRACT and BUSINESS LAW;  (4) CORPORATION law;  (5)
inheritance law ;  and (6) family law.

Sources of Law

Laws can also be subdivided on the basis of the sources of law
from which they derive.  The various legal systems of the world
recognize as valid and therefore binding on their subjects some
or all of the following major sources:  constitutions and
administrative rules, such as those described above;
legislative statutes;  judicial precedents;  and customary
practice.  Although when a person thinks of law, the concept of
statutes comes most readily to mind, statutes are now
outnumbered by the innumerable administrative rules and
regulations that have accompanied the growth of administrative
government in modern times.  Judicial precedents (also known as
case law), which are recognized as valid law that later courts
must follow in COMMON LAW but not in CIVIL LAW systems, are
prior cases decided by courts.  Finally, customary practice is
a minor source of law in the legal systems of advanced
industrial nations, but it is the primary if not the only
source in primitive legal systems and is inextricably linked
with kinship, taboo, religion, and traditional authority
systems.

LAWYERS

The requirements for becoming a lawyer in the United States are
set by each state and the District of Columbia.  In general, an
individual must earn a bachelor's degree and then attend a
recognized law school for either 3 years as a full-time day
student or 4 years as a part-time evening student.  Law schools
grant the juris doctor (J.D.) degree, and many also offer a
master of laws (LL.M.) program.  Some also offer a doctoral
program leading to the degree of doctor of the science of
jurisprudence (J.S.D.).  The basic J.D.  degree is sufficient
for either law practice, law teaching, or the judiciary.  In
order to become an ATTORNEY the individual must also pass the
state's bar examination.  A person who wishes to work in the
law but does not wish to pursue the program leading to a law
degree may train to be a paralegal assistant to lawyers .  Various
 schools have been set up in recent years to train such persons.

Most lawyers are in private practice.  In larger centers of
population they tend to form partnerships that may range from
two to hundreds of members.  Because the law touches on all
aspects of life, the work of lawyers is of infinite variety.
Most lawyers specialize in a field such as tax law, estate
planning, corporate law, workers compensation law, and so
forth.  Some lawyers specialize in trial work.  Many work for
federal, state, or local government or for administrative
agencies.  Some lawyers are employed by business firms;  the
legal department of a large corporation or bank may include
dozens of lawyers.

In England legal representation is divided between solicitors,
or attorneys, and barristers. A client goes to a solicitor, who
drafts legal documents, advises, and handles matters that can
be settled out of court or in lower courts. If a case must go
to a higher court the solicitor employs a barrister, who is
permitted to plead in superior courts. In these cases the
solicitor and barrister form a legal team.