HOW DID LAW COME ABOUT?

Long ago, people lived only in small tribal groups. They lived together, followed the

same traditions, and worshipped the same gods. There were no formal laws. Instead, people were

guided by their customs, morals, and religion.

Over time, cities began to form. Laws became more formal and were written down in

legal codes. In about 1750 BC, the king of Babylon created one of the first legal codes, the Code

of Hammurabi. It listed certain crimes and told how they should be punished.

THE ROMAN CONTRIBUTION

The ancient Romans helped shape our modern view of law. In the 600s BC, citizens of

Rome wrote down all of their basic laws on twelve bronze tablets. The Romans declared that no

citizen, not even the ruler, was above the law.

Modern law codes are rooted in the Roman system. Such law codes are statutory,

meaning they are created and changed by legislatures, not by courts. They provide the main

source of law in much of modern Europe, South America, and other places.

ENGLISH COMMON LAW

Another system of law took shape later in England. Before the 12th century AD, each part

of England had its own rules and customs. From the 12th century onward, England became a

single nation. The courts of the land made sure people followed a common set of customs—the

English common law.

Unlike the Roman system of law, the common law was never written down in one place.

Instead, the courts made decisions about the law based on earlier court decisions. Those

decisions are called precedents. Each case must be decided in the same way as earlier cases. But

if a case has some new aspects, the decision made will set a new precedent. That way, courts

gradually change the law as society changes.

THE AMERICAN SYSTEM

The system of law in the United States is a mixture of the statutory and common law

systems. The U.S. Congress and state legislatures pass many statutory laws. But the common law

remains important, too. American courts continue to make many legal decisions by precedent.

THE RULE OF LAW

The rule of law is fundamental to the western democratic order. Aristotle said more than

two thousand years ago, "The rule of law is better than that of any individual." Lord Chief Justice

Coke quoting Bracton said in the case of Proclamations (1610) 77 ER 1352, "The King himself

ought not to be subject to man, but subject to God and the law, because the law makes him

King".

The rule of law in its modern sense owes a great deal to the late Professor AV Dicey.

Professor Dicey's writings about the rule of law are of enduring significance.

The essential characteristic of the rule of law are:

1. The supremacy of law, which means that all persons (individuals and government) are

subject to law.

2. A concept of justice which emphasises interpersonal adjudication, law based on standards

and the importance of procedures.

3. Restrictions on the exercise of discretionary power.

4. The doctrine of judicial precedent.

5. The common law methodology.

6. Legislation should be prospective and not retrospective.

7. An independent judiciary.

8. The exercise by Parliament of the legislative power and restrictions on exercise of

legislative power by the executive.

9. An underlying moral basis for all law.

The system of law is a set of rules of conduct of any organized society that are enforced by

threat of punishment if they are violated. Modern law has a broad scope and regulates many

branches of conduct. The royal courts of England developed common law, which is judicial

legislation, as opposed to the law of the formally enacted statute. Common law is based upon

adherence to precedent, in which previous decisions are followed to ensure a uniform application

of the law to similar situations. The theory behind adherence to precedent is to allow a

predictable outcome for certain actions.

Civil law is based on written legal codes, a cornerstone of the Roman legal system, in which

disputes were settled by reference to a written legal code arrived at through legislation, edicts,

etc., as opposed to common law, which is based on the precedents created by judicial decisions

over time. The tendency in civil law is to create a unified legal system by working out in detail

the conclusions to be drawn from basic principles. The civil law judge is bound by the provisions

of the written law. The traditional civil law decision states the applicable provision from the code

or from a relevant statute, and the judgment is based upon that provision.

The rule of law is a legal maxim whereby governmental decisions are made by applying

known legal principles. Such a government can be called a nomocracy, from the Greek nomos

(law) and kratos (power or rule). The phrase can be traced back to 17th century and was

popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient

philosophers such as Aristotle, who wrote "Law should govern". Rule of law implies that every

citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for

example by divine right.

Despite wide use by politicians, judges and academics, the rule of law has been described as

"an exceedingly elusive notion" giving rise to a "rampant divergence of understandings ,

everyone is for it but have contrasting convictions about what it is."

At least two principal conceptions of the rule of law can be identified: a formalist or "thin"

and a substantive or "thick" definition of the rule of law. Formalist definitions of the rule of law

do not make a judgment about the "justness" of law itself, but define specific procedural

attributes that a legal framework must have in order to be in compliance with the rule of law.

Substantive conceptions of the rule of law go beyond this and include certain substantive rights

that are said to be based on, or derived from, the rule of law.

Different people have different interpretations about exactly what "rule of law" means.

According to political theorist Judith N. Shklar, "the phrase 'the Rule of Law' has become

meaningless thanks to ideological abuse and general over-use", but nevertheless this phrase has

in the past had specific and important meanings. Among modern legal theorists, most views on

this subject fall into three general categories: the formal (or "thin") approach, the substantive (or

"thick") approach, and the functional approach.

The "formal" interpretation is more widespread than the "substantive" interpretation.

Formalists hold that the law must be prospective, well-known, and have characteristics of

generality, equality, and certainty. Other than that, the formal view contains no requirements as

to the content of the law. This formal approach allows laws that protect democracy and

individual rights, but recognizes the existence of "rule of law" in countries that do not necessarily

have such laws protecting democracy or individual rights.

The substantive interpretation holds that the rule of law intrinsically protects some or all

individual rights.

The functional interpretation of the term "rule of law", consistent with the traditional English

meaning, contrasts the "rule of law" with the "rule of man." According to the functional view, a

society in which government officers have a great deal of discretion has a low degree of "rule of

law", whereas a society in which government officers have little discretion has a high degree of

"rule of law". The rule of law is thus somewhat at odds with flexibility, even when flexibility

may be preferable.

The ancient concept of rule of law can be distinguished from rule by law, according to

political science professor Li Shuguang: "The difference....is that, under the rule of law, the law

is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is

a mere tool for a government, that suppresses in a legalistic fashion."

The rule of law has been considered as one of the key dimensions that determine the quality

and good governance of a country. Research, like the Worldwide Governance Indicators, defines

the rule of law as: "the extent to which agents have confidence and abide by the rules of society,

and in particular the quality of contract enforcement, the police and the courts, as well as the

likelihood of crime or violence." Based on this definition the Worldwide Governance Indicators

project has developed aggregate measurements for the rule of law in more than 200 countries, as

seen in the map below. The rule of law has also been discussed in relation to the United

Kingdom.

Many organizations and scholars have advocated the rule of law and have taken positions

regarding the interpretation of that concept they prefer.

One important aspect of the rule-of-law initiatives is the study and analysis of the rule of

law’s impact on economic development. The rule-of-law movement cannot be fully successful in

transitional and developing countries without an answer to the question: does the rule of law

matter for economic development or not? Constitutional economics is the study of the

compatibility of economic and financial decisions within existing constitutional law frameworks,

and such a framework includes government spending on the judiciary, which, in many

transitional and developing countries, is completely controlled by the executive. It is useful to

distinguish between the two methods of corruption of the judiciary: corruption by the executive

branch, in contrast to corruption by private actors.

The standards of constitutional economics can be used during annual budget process, and if

that budget planning is transparent then the rule of law may benefit. The availability of an

effective court system, to be used by the civil society in situations of unfair government spending

and executive impoundment of previously authorized appropriations, is a key element for the

success of the rule-of-law endeavor.

The Rule of Law is especially important as an influence on the economic development in

developing and transitional countries. To date, the term “rule of law” has been used primarily in

the English-speaking countries, and it is not yet fully clarified even with regard to such well-

established democracies as, for instance, Sweden, Denmark, France, Germany, or Japan. A

common language between lawyers of common law and civil law countries as well as between

legal communities of developed and developing countries is critically important for research of

links between the rule of law and real economy.

The modern economist F. A. Hayek analyzed how the Rule of Law might be beneficial to the

free market. Hayek proposed that under the Rule of Law individuals would be able to make wise

investments and future plans with some confidence in a successful return on investment when he

stated: "under the Rule of Law the government is prevented from stultifying individual efforts by

ad hoc action. Within the known rules of the game the individual is free to pursue his personal

ends and desires, certain that the powers of government will not be used deliberately to frustrate

his efforts." Hayek defined the Rule of Law as the opposite of arbitrary government: "The

distinction we have drawn before between the creation of a permanent framework of laws within

which the productive activity is guided by individual decisions and the direction of economic

activity by a central authority is thus really a particular case of the more general distinction

between the Rule of Law and arbitrary government. Under the first the government confines

itself to fixing rules determining the conditions under which the available resources may be used,

leaving to the individuals the decision for what ends they are to be used. Under the second the

government directs the use of the means of production to particular ends. The first type of rules

can be made in advance, in the shape of formal rules which do not aim at the wants and needs of

particular people. They are intended to be merely instrumental in the pursuit of people's various

individual ends. And they are, or ought to be, intended for such long periods that it is impossible

to know whether they will assist particular people more than others. They could almost be

described as a kind of instrument of production, helping people to predict the behaviour of those

with whom they must collaborate, rather than as efforts toward the satisfaction of particular

needs."

Upholding the rule of law can sometimes require the punishment of those who commit

offenses that are justifiable under natural law but not statutory law. Heidi M. Hurd raises the

example of a battered woman who rightly believes that there is a strong probability that her

husband will eventually attempt to kill her and her children unless she preemptively kills him. If

the law does not permit the acquittal of those who claim self-defense in the absence of an

imminent threat of harm, then the woman must be punished, or "what will become of the rule of

law? For law seemingly ceases to be law if judges are entitled to rethink its wisdom in every case

to which it applies and to disregard it whenever it is inferior to the rule that they would fashion."

Types of Law

Substantive law is the type of law we see enforced on the streets…often by police.  If

someone robs a bank, a substantive law has been broken.  If your neighbor hires an

undocumented person who is not legal to work in the United States, a substantive law has been

broken. If a corporation hides important financial information from its shareholder, well there

goes another substantive law broken.

Most people don’t even know there is any other type of law other than substantive law.  

That’s because the other types of law, called procedural law, deal with the legal system on a

higher, administrative level.  For example, the steps that must be followed in a trial case are

dictated by procedural law.   What laws do member of the US Supreme Court follow in their

daily operations? 

Now, there are other types of law that fall into a sub category under substantive law…

private law and public law.  Then those types can also be divided.  Private law covers

transactions between private parties…real estate transactions, business transactions…both are

types of private law.  For public law, we have mainly what you see on Law & Order: murder,

burglary, assault, etc.

Procedural Law

Types of Law: Procedural Law

In the most general sense, there are two types of law: Procedural Law and Substantive

Law. However, most people are most concerned with the latter, substantive law. This is the type

of law which matters to most people…the legal rules of society by which we all live, and which

are enforceable. The US courts, the police, defense lawyers, and everyday citizens of the US

come into contact with some form of substantive law every day. This is the working body of

legal rights and duties that make up our legal world.

Procedural law is what governs the courts, the legal professionals and the enforcement

institutions (e.g. the Police) which keep the substantive laws going. Most people are not

concerned with the types of law at this level…unless they are working at something like the

Procedural Law Institute or some government legal consulting agency or for an educational

institution.

Civil procedural law in the US follows the supreme court-mandated Federal Rules of

Civil Procedure. We also have the Federal Rules of Criminal Procedure. This lets lawyers know

how to go about doing their job, the procedure.

For example, how does a lawyer know when he or she has to file complaints or serve

documents on the opposition? Procedural law determines this. What’s the next step in your case?

Your lawyer knows what to do because he or she studied procedural law in law school.

Some different types of law include:

(1) Public law - law that concerns the state, either in international relations, or in the

relationship between the state and the individual.

(2) Criminal law - law that is concerned with breach of public duty and is punishable by

the state on behalf of society.

(3) Tort - torts are such things as negligence, nuisance, defamation and trespass - they

are concerned with civil wrongs other than breaches of contract and trust. The law requires

people not to harm or threaten the interests of others, and the law of tort is designed to

compensate for harm when it occurs.

(4) Trusts - Defined as an "equitable obligations imposing on one or more persons a

duty of dealing with property, over which they have control, for the benefit of other persons who

may enforce the obligation." The property may be any asset: money, stocks, shares, land etc.

Note that partnerships and minors cannot legally have estates.

(5) Civil law provides rules for the conduct of relations and transactions between

persons or organisations, for example, contracts, consumer rights and property transactions. For

the purposes of business studies, civil law is more relevant. Civil proceedings are brought by

private parties with a grievance. Proof is on the balance of probabilities, meaning that a lesser

degree of proof is required than in a criminal case. If the person bringing the case, the plaintiff

(the accuser), is able to obtain a favourable judgement then he will be awarded compensation,

usually financial, for the civil wrong that has been shown to have been done.