What Is the Significance of Legal System
“Law is the command of a sovereign” represents which school of legal thought? There are different ideas about what is right and what should be right. Laws and legal systems differ around the world. The legal system in the United States is based on the U.S. Constitution, which itself is inspired by natural law theory and the idea that people have rights that cannot be taken away by the government, but can only be protected by the government. The various functions of the law are done well or badly, depending on the nation-state you are looking at. Some are very good at maintaining order, while others are better at allowing civil and political liberties. Social and political movements within each nation greatly influence the nature and quality of the legal system within that nation. There are hundreds of legal systems in the world. At the global level, international law is of great importance, whether through the practice of sovereign States or through agreement between them in the form of treaties and other agreements. Some transnational entities, such as the European Union, have created their own legal structures. At the national level, the United Nations has more than 180 sovereign States. Many of them are federal and their components may have their own additional laws.
Most modern legal systems can be described as either common law, civil law, or a mixture of both. Civil law systems rely less on precedents than on codes that explicitly provide rules for many specific disputes. If a judge has to go beyond the letter of a code to resolve a dispute, his or her decision will not become binding or even relevant in subsequent decisions involving other parties. Most of what we discuss in this book is positive law – especially American positive law. We will also examine the laws and legal systems of other nations. But first, it will be useful to cover some basic concepts and distinctions. There is a strong correlation between what we generally consider ethical behavior and what laws require and provide. For example, contract law perpetuates a societal feeling that promises – in general – must be kept. Breaking promises is considered unethical.
The law provides remedies for broken promises (breach of contract), but not for all broken promises; Some apologies are accepted if it is reasonable to do so. For tort law, it is considered unethical to harm others. If the law did not prevent people from harming each other, an orderly society would be destroyed and lead to anarchy. The Damages Act provides for compensation in the event of injury or serious damage. With regard to property rights issues, we generally believe that private ownership of property is socially useful and generally desirable, and in general (with a few exceptions) protected by law. You cannot throw a party in my house without my permission, but my right to do whatever I want on my own property may be restricted by law; I can`t run an incinerator on my property and burn heavy metals without public permission because toxic ash can be deposited throughout the neighborhood. Civil law systems are used throughout Europe as well as in Central and South America. Some countries in Asia and Africa have also adopted codes based on European civil law. Germany, Holland, Spain, France, and Portugal all had colonies outside Europe, and many of these colonies adopted the legal practices imposed by colonial rule, as did the original thirteen states of the United States that adopted English common law practices. Suppose a court has to decide whether an employer can fire an employee without cause.
Suppose there were no laws that applied to the facts: there was no contract between the employer and the employee, but the employee had worked for the employer for many years, and now a younger person was replacing him. The court should decide, without prior guidelines, whether the employee has raised a “cause of action” against the employer. If the court decides that the case is not legally enforceable, it will dismiss the claim. Future courts would then treat similar cases in the same way. In this lawsuit, the court could find that employers can fire employees for any reason or no reason. This rule could be applied in the future if similar cases occurred. In each case (general rule and exception), the common law tradition requires the court to explain the reasons for its decision. In the case of the general rule, “freedom of choice” could be the main reason.
In the case of the perjury exception, the efficiency of the judicial system and the requirements of citizenship could be invoked as grounds. Since the court`s “reasons” will be persuasive to some and not to others, there is inevitably some subjectivity in legal advice. That is, reasonable people will disagree on how convincing the reasoning that a court can offer for its decision is. Law is a word that means different things at different times. Black`s Law Dictionary says that law is “a set of rules of action or conduct prescribed by the supervisory authority and having binding legal force. What is followed and must be followed by citizens subject to sanctions or legal consequences is a law. Black`s Law Dictionary, 6th edition, s.v. “Law”. Under most treaties, the United States may withdraw or withdraw any voluntary limitation on its sovereignty; Participation in contracts is exclusively subject to compulsory voting.
That is, the United States can “detach” itself whenever it wants. But for practical reasons, some restrictions on sovereignty may be good for the nation. The argument is that if free trade in general helps the United States, it makes sense to be part of a system that promotes free trade; and, despite some temporary setbacks, the WTO decision-making process will (hopefully) bring far more benefits than losses in the long run. This argument is based on the utilitarian theory (according to which the best overall policy brings the greatest benefit to society) and David Ricardo`s theory of comparative advantage. Other legal and political systems are very different from the American system, which derives from the traditions of English common law and the framers of the American Constitution. Our legal and political traditions differ both in the type of laws we pass and respect and in the way disputes are resolved in court. Private law defines who is considered to have legal capacity and deals with their legal capacity (for the protection of the very young or mentally ill). These natural persons may create other “artificial” legal entities such as associations, foundations and companies.
Each of the different law schools has a particular conception of what a legal system is or what it should be. Natural law theorists emphasize the rights and duties of government and the governed. Positive law presupposes that law is only the command of a sovereign, the political power to which the governed will obey. Recent writings in the various schools of legal thought emphasize long-standing models of government by the rich over others (the CLS school) and by men over women (ecofeminist legal theory). A number of other countries have a dual system. In such a system, religious rules govern and religious courts rule on matters such as marriage, divorce and family relations. However, a secular system with state courts covers the broader areas of public and commercial law. This was the situation in England until the 1850s and it is now the case in Israel, India and Pakistan. In these dual jurisdictions, the proportion of human activity regulated by either system may depend on the level of economic and political development of the country concerned. On the other hand, procedural laws are the rules of courts and administrative authorities. They tell us what to do if there is a fundamental problem. For example, if you drive fifty-three miles per hour in a forty-mile-per-hour zone on Main Street on a Saturday night and receive a ticket, you have violated a substantial legal standard (the specified speed limit).
How the court decides and what is decided is a matter of procedural law. Each of these chapters is discussed in more detail in this chapter and in other chapters of this book. They are summarized below to give the reader an overview of some of the fundamental principles of American common law. ConstitutionsThe founding documents of the legal system of each nation-state. are the basis for other laws of a state or nation and form the legislative, executive and legal framework of the country.