Law

• 1. What Is Law

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  Around the 22nd century BC, the Sumerian ruler Ur-Nammu formulated the first law code, written as a chain of casuistic statements that ran in the form of if this, then that. Centuries later, King Hammurabi set his rules into stone and stood copies as stelae across Babylon, so the entire public could read them. These were attempts to answer a question that has never been fully settled. Law is a set of rules created and enforced by governmental or societal institutions to regulate behavior, yet its precise definition remains a matter of longstanding debate. It has been called both a science and the art of justice. State-enforced laws may come from a legislature as statutes, from the executive as decrees and regulations, or from judges whose decisions form precedent. Why has no thinker ever pinned down a single definition of law? How did rules carved into Babylonian stone grow into the sprawling civil and common law systems that govern most of the world? And why do nations sort their laws so differently, dividing public from private, secular from religious? The answers travel from ancient Egypt to the European Court of Justice, and from the philosophy of jurisprudence to the snail found floating in a bottle of ginger beer.

• 2. The Unwinnable Definition

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  In 1972, Baron Hampstead suggested that no universally acceptable definition of law could ever be produced. McCoubrey and White agreed that the question what is law has no simple answer. Glanville Williams argued the word's meaning depends entirely on context, noting that early customary law and municipal law carried two irreconcilable meanings. Thurman Arnold offered the sharpest paradox. He said it is obvious that defining the word law is impossible, and equally obvious that the struggle to define it should never be abandoned.

  H. L. A. Hart, writing in The Concept of Law, argued that law is a system of rules. John Austin had defined it as the command of a sovereign, backed by the threat of a sanction. Ronald Dworkin, in Law's Empire, described law as an interpretive concept aimed at achieving justice, while Joseph Raz called it an authority that mediates people's interests. Oliver Wendell Holmes was blunter, defining law as the prophecies of what the courts will do in fact, and nothing more pretentious. Thomas Aquinas, in his Treatise on Law, called law a rational ordering of things concerning the common good, promulgated by whoever cares for the community. That single definition carries both positivist and naturalist elements, and the split between those two camps would become the central fault line of legal philosophy.

• 3. Morality Against Command

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  John Austin's answer to the morality question was utilitarian. Law, he said, is commands backed by threat of sanctions, from a sovereign to whom people have a habit of obedience. Jean-Jacques Rousseau and other natural lawyers took the opposite view, arguing that law reflects essentially moral and unchangeable laws of nature. That notion of natural law emerged in ancient Greek philosophy alongside the idea of justice, and re-entered Western culture through Aquinas.

  Hugo Grotius, founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse and from reason. Immanuel Kant held that a moral imperative requires laws be chosen as though they should hold as universal laws of nature. Jeremy Bentham and Austin, following David Hume, accused such thinking of conflating what is with what ought to be, and argued for law's positivism, that real law is entirely separate from morality. Friedrich Nietzsche rejected Kant differently, dismissing equality and arguing that law emanates from the will to power, beyond any label of moral or immoral.

  Hans Kelsen, the Austrian philosopher, extended the positivist tradition in his 1934 book the Pure Theory of Law. He held that law is separate from morality yet endowed with normativity, meaning we ought to obey it. Each legal system, he proposed, can be hypothesised to rest on a basic norm, a Grundnorm, instructing us to obey. His major opponent, Carl Schmitt, rejected both positivism and the rule of law, refusing to place abstract normative principles above concrete political decisions. Schmitt instead advocated a jurisprudence of the exception, a state of emergency that legal norms could never fully encompass. Hart later faulted Austin for his simplifications and Kelsen for his fiction, and built his own answer on a careful division of rules.

• 4. Codes And Precedent

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  Ancient Egyptian law, dating as far back as 3000 BC, rested on the concept of Ma'at and was marked by tradition, rhetorical speech, social equality, and impartiality. Athens, from about the 8th century BC, became the first society built on broad inclusion of its citizenry, though it excluded women and enslaved people. Curiously, Athens had no single word for law, relying instead on a three-way distinction between divine law, human decree, and custom. Roman jurists, drawing on Greek philosophy, developed law into something highly sophisticated, codified under Theodosius II and Justinian I.

  From 529 to 534 AD, the Byzantine Emperor Justinian I consolidated Roman law so thoroughly that only one-twentieth of the earlier mass of legal texts remained. The result, the Corpus Juris Civilis, stayed in force in the East until the Byzantine Empire fell. One legal historian wrote that Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before. Western Europe leaned on a mix of the Theodosian Code and Germanic custom until scholars at the University of Bologna rediscovered Justinian's work in the 11th century, giving birth to the jus commune.

  The common law took a different road in medieval England. Under Henry II in the late 12th century, royal judges built an institutionalised system common to the whole country. When King John's barons forced the Magna Carta upon him in 1215, it required that royal judges hold their courts at a certain place rather than dispensing justice unpredictably. England's judiciary grew remarkably centralised. In 1297, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five. Later, France with the Code Civil and Germany with the Bürgerliches Gesetzbuch modernised their codes in the 19th century, shaping the Japanese and Korean traditions and carrying with them the German idea of a Rechtsstaat, where everyone, especially government, is subject to the law.

• 5. Equity And Faith

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  Sir Thomas More, the first lawyer appointed as Lord Chancellor, sat at the origin of a second English legal stream. As citizens came to find the common law overly systematised and inflexible, they petitioned the King, and the Lord Chancellor began giving judgments to do what was equitable in a case. A systematic body of equity grew alongside the rigid common law, developing its own Court of Chancery. Criticised at first for erratic behavior, equity firmed into solid principles under Lord Eldon. England merged the two systems in the 19th century, and the United States did so in 1937. William Blackstone, from around 1760, became the first scholar to collect, describe, and teach the common law, and in describing it quietly changed how it worked.

  Religious law follows a wholly different logic, grounded in scripture. The Jewish Halakha and Islamic Sharia both translate as the path to follow. The frequent implication of religion for law is unalterability, since the word of God cannot be amended by judges or governments. Yet most religious jurisdictions still rely on human elaboration. The Quran supplies some law and serves as a source for more through Qiyas, reasoning by analogy, Ijma, consensus, and precedent, gathered in the body of Sharia and Fiqh. The Torah holds the basic code of Jewish law, which some Israeli communities choose to use.

  The Catholic Church carries the oldest continuously functioning legal system in the western world, older than modern European civil and common law alike. The 1983 Code of Canon Law governs the Latin Church, while the Eastern Catholic Churches follow the Code of Canons of the Eastern Churches. Canon law influenced the common law during the medieval period by preserving Roman doctrine such as the presumption of innocence. Sharia, practiced in non-codified form across the Muslim world until the 18th century, met its first attempt at codification in the Ottoman Empire's Mecelle code in the 19th century. Saudi Arabia recognises the Quran as its constitution, and Iran reasserted Islamic law into its system after 1979.

• 6. The Architecture Of Power

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  John Locke, in his Two Treatises of Government, and Baron de Montesquieu, in The Spirit of the Laws, argued that political, legislative, and executive powers must be separated so that no person could usurp all powers of the state. They wrote against the absolutist theory of Thomas Hobbes' Leviathan. Sun Yat-sen's Five Power Constitution for the Republic of China pushed separation further, adding a Control Yuan for auditing oversight and an Examination Yuan to manage public officials.

  Prominent legislatures gather in named halls. The Houses of Parliament sit in London, the Congress in Washington, D.C., the Bundestag in Berlin, the Duma in Moscow, the Parlamento Italiano in Rome, and the Assemblee nationale in Paris. While Israel, Greece, Sweden, and China are unicameral, most countries are bicameral, with two separately appointed houses. The traditional defense of a second chamber is that it acts as a house of review, minimising arbitrariness and injustice in governmental action.

  The executive sits at the centre of political authority. In parliamentary systems like those of Britain, Italy, Germany, India, and Japan, it forms a cabinet drawn from the legislature and led by a head of government. In presidential systems, found in the United States and Brazil, one figure serves as both head of state and head of government and appoints an unelected cabinet. The head of state may be the President of Germany, appointed by federal and state legislatures, the Queen of the United Kingdom holding a hereditary office, or the President of Austria, elected by popular vote.

  Max Weber argued that the state controls the monopoly on the legitimate use of force, carried out by military and police at the request of government or courts. A failed state, by contrast, can no longer enforce policies, and society slides into anarchy. The standing police force is a relatively modern idea. Medieval England used travelling criminal courts, the assizes, with show trials and public executions to instill fear. The first modern police were probably those of 17th-century Paris in the court of Louis XIV, though the Paris Prefecture of Police claims its officers were the world's first in uniform. Beneath all of this runs the bureaucracy, whose name joins the French bureau with the Greek kratos. In 1765 Baron de Grimm complained that in France the offices, clerks, and inspectors seemed to exist so that the public interest might serve them, rather than the reverse.

• 7. When Law Meets Life

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  A friend of Donoghue ordered an opaque bottle of ginger beer in a cafe in Paisley, and after Donoghue drank half and poured out the rest, the decomposing remains of a snail floated into her tumbler. She fell ill with gastroenteritis and sued the manufacturer for carelessly allowing the drink to be contaminated. In Donoghue v Stevenson, the House of Lords held the manufacturer liable. Lord Atkin took a moral approach, saying the rule that you are to love your neighbour becomes in law, you must not injure your neighbour. The case set out the four principles of negligence, the most common form of tort, where a breached duty of care that proximately causes harm entitles the injured party to compensation.

  Criminal law, also called penal law, turns on proving guilt beyond reasonable doubt. The accused must commit a criminal act, the actus reus, and hold the requisite malicious intent, the mens rea, though strict liability crimes require only the act. The civil law tradition separates intention from negligence, which carries no criminal responsibility unless a crime provides for it. Because crimes are offences against the community, common law cases are styled The People v or R v, and 111 countries belong to the International Criminal Court, established to try crimes against humanity. The 19th-century English case R v Dudley and Stephens tested whether necessity could justify murder and cannibalism to survive a shipwreck.

  Contract law rests on the Latin pacta sunt servanda, agreements must be kept. Common law requires offer and acceptance, consideration, and the intention to create legal relations, though Australia is moving away from consideration. Civil law takes a more interventionist path, imposing a stronger duty of good faith and enforcing penalty clauses and specific performance. Germany's abstraction principle, the Abstraktionsprinzip, separates the personal obligation of a contract from the title of property. When a buyer too drunk to contract loses legal capacity, the duty to pay can be invalidated separately from ownership of the car, and unjust enrichment law restores the title.

  Property law governs ownership and possession, dividing real property in land from personal property in everything else. The 1722 case Armory v Delamirie settled that the person with the best claim against any contesting party is the owner, after a child was deprived of gemstones by the businessperson entrusted to appraise the jewellery. Friedrich Carl von Savigny held the civil law view that property is a right good against the world. Equity added the trust, splitting control from beneficial ownership, with trustees bound to care for the property they hold. The most important form of trust is the pension fund, where investors act as trustees for people's savings until retirement, and some international norms for trusts appear in the Hague Trust Convention of 1985.

• 8. Studying The Law

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  Adam Smith, in the 18th century, laid a philosophical foundation for the relationship between law and economics, a discipline that arose partly from a critique of trade unions and U.S. antitrust law. Its most prominent analyst is Ronald Coase. In The Nature of the Firm, published in 1937, he argued that firms exist because of transaction costs, with rational individuals trading through bilateral contracts until corporations become more cost-effective. In The Problem of Social Cost, published in 1960, he argued that in a world without transaction costs, people would bargain to the same allocation of resources regardless of how a court ruled. Members of the Chicago School broadly favour deregulation and privatisation and resist state restrictions on free markets.

  Around 1900, Max Weber defined a scientific approach to law, identifying legal rational form as domination rooted not in personal authority but in abstract norms. This formal legal rationality, he held, was a precondition for the modern bureaucratic state and grew in parallel with capitalism. Emile Durkheim, in The Division of Labour in Society, argued that as society grows more complex, civil law concerned with restitution expands at the expense of penal sanctions. Earlier, jurists had been suspicious of the new field. Kelsen attacked Eugen Ehrlich, one of its founders, who sought to distinguish positive law that lawyers apply from the social norms that quietly prevent conflicts from ever reaching a court.