127-669: In the United States, there are multiple laws known as the Flood Control Act ( FCA ). Typically, they are enacted to control irrigation because of floods or other natural disasters and are administered by the United States Army Corps of Engineers . These laws were enacted beginning in 1917, with the most recent one being passed in 1965. There were several major floods between 1849 and 1936 that moved Congress to pass legislation. The first significant federal flood control law
254-401: A constitution , written or tacit, and the rights encoded therein. The law shapes politics , economics , history and society in various ways and also serves as a mediator of relations between people. Legal systems vary between jurisdictions , with their differences analysed in comparative law . In civil law jurisdictions, a legislature or other central body codifies and consolidates
381-625: A federal system (as in Australia, Germany or the United States) or different voting configuration in a unitary system (as in France). In the UK the upper house is appointed by the government as a house of review . One criticism of bicameral systems with two elected chambers is that the upper and lower houses may simply mirror one another. The traditional justification of bicameralism is that an upper chamber acts as
508-417: A parliamentary system , as with Britain, Italy, Germany, India, and Japan, the executive is known as the cabinet, and composed of members of the legislature. The executive is led by the head of government , whose office holds power under the confidence of the legislature. Because popular elections appoint political parties to govern, the leader of a party can change in between elections. The head of state
635-652: A ruler ') is a set of ordinances and regulations made by ecclesiastical authority , for the government of a Christian organisation or church and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern Orthodox Church , the Oriental Orthodox Churches , and the individual national churches within the Anglican Communion . The way that such church law
762-464: A sentence forms the final explicit act of a judge -ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment , a fine and/or other punishments against a defendant convicted of a crime . Laws may specify the range of penalties that can be imposed for various offenses, and sentencing guidelines sometimes regulate what punishment within those ranges can be imposed given
889-440: A "common law" developed during the reign of Henry II during the late 12th century, when Henry appointed judges who had the authority to create an institutionalised and unified system of law common to the country. The next major step in the evolution of the common law came when King John was forced by his barons to sign a document limiting his authority to pass laws. This "great charter" or Magna Carta of 1215 also required that
1016-579: A certain set of offense and offender characteristics. The most common purposes of sentencing in legal theory are: In civil cases the decision is usually known as a verdict , or judgment, rather than a sentence. Civil cases are settled primarily by means of monetary compensation for harm done (" damages ") and orders intended to prevent future harm (for example injunctions ). Under some legal systems an award of damages involves some scope for retribution, denunciation and deterrence, by means of additional categories of damages beyond simple compensation, covering
1143-424: A city in his philosophy, which he describes through the metaphor of a chariot: it functions effectively when the charioteer, representative of reason, successfully controls the two horses, symbolizing spirit and desire. Continuing on these themes, Plato theorizes that those who love wisdom, or philosophers , are the most ideal to govern because only they truly comprehend the nature of the good. Just like one would seek
1270-415: A disagreement (or trial in some cases). According to utilitarian thinkers including John Stuart Mill , justice is not as fundamental as we often think. Rather, it is derived from the more basic standard of rightness, consequentialism : what is right is what has the best consequences (usually measured by the total or average welfare caused). So, the proper principles of justice are those that tend to have
1397-411: A doctor's expertise in matters of health rather than a farmer's, so should the city entrust its governance to someone knowledgeable about the good, rather than to politicians who might prioritize power over people's genuine needs. Socrates later used the parable of the ship to illustrate this point: the unjust city is like a ship in open ocean, crewed by a powerful but drunken captain (the common people),
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#17328444090961524-461: A group of untrustworthy advisors who try to manipulate the captain into giving them power over the ship's course (the politicians), and a navigator (the philosopher), the latter of whom being the only one who knows how to get the ship to port. Advocates of divine command theory say justice, and indeed the whole of morality, is the authoritative command of God. Murder is wrong and must be punished, for instance, because God says it so. Some versions of
1651-442: A house of review. This can minimise arbitrariness and injustice in governmental action. To pass legislation, a majority of the members of a legislature must vote for a bill (proposed law) in each house. Normally there will be several readings and amendments proposed by the different political factions. If a country has an entrenched constitution, a special majority for changes to the constitution may be required, making changes to
1778-440: A matter of longstanding debate. It has been variously described as a science and as the art of justice. State-enforced laws can be made by a legislature , resulting in statutes ; by the executive through decrees and regulations ; or by judges' decisions, which form precedent in common law jurisdictions. An autocrat may exercise those functions within their realm. The creation of laws themselves may be influenced by
1905-591: A process of reform, at least in terms of economic, if not social and political, rights. A new contract code in 1999 represented a move away from administrative domination. Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organization . In general, legal systems can be split between civil law and common law systems. Modern scholars argue that the significance of this distinction has progressively declined. The numerous legal transplants , typical of modern law, result in
2032-558: A significant secondary role. Theories of distributive justice need to answer three questions: Distributive justice theorists generally do not answer questions of who has the right to enforce a particular favored distribution, while property rights theorists say that there is no "favored distribution". Rather, distribution should be based simply on whatever distribution results from lawful interactions or transactions (that is, transactions which are not illicit). In Anarchy, State, and Utopia , Robert Nozick said that distributive justice
2159-469: A single global community with a shared morality. Social justice is also distinct from egalitarianism , which is the idea that all people are equal in terms of status, value, or rights, as social justice theories do not all require equality. For example, sociologist George C. Homans suggested that the root of the concept of justice is that each person should receive rewards that are proportional to their contributions. Economist Friedrich Hayek said that
2286-541: A view of negative liberty, in the form of freedom from governmental interference. He further extends the concept of negative liberty in endorsing John Stuart Mills' harm principle: "the sole end for which mankind are warranted, individually and collectively, in interfering with the liberty of action of any of their number, is self-protection", which represents a classical liberal view of liberty. In political theory, liberalism includes two traditional elements: liberty and equality. Most contemporary theories of justice emphasize
2413-462: 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. The Catholic Church has the oldest continuously functioning legal system in the western world , predating the evolution of modern European civil law and common law systems. The 1983 Code of Canon Law governs
2540-495: Is a code of Jewish law that summarizes some of the Talmud's interpretations. A number of countries are sharia jurisdictions. Israeli law allows litigants to use religious laws only if they choose. Canon law is only in use by members of the Catholic Church , the Eastern Orthodox Church and the Anglican Communion . Canon law ( Ancient Greek : κανών , romanized : kanon , lit. 'a straight measuring rod;
2667-465: Is a form of fairness: an impartial distribution of goods. Rawls asks us to imagine ourselves behind a veil of ignorance that denies us all knowledge of our personalities, social statuses, moral characters, wealth, talents and life plans, and then asks what theory of justice we would choose to govern our society when the veil is lifted, if we wanted to do the best that we could for ourselves. We do not know who in particular we are, and therefore can not bias
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#17328444090962794-458: Is a system of rules, divided into primary (rules of conduct) and secondary ones (rules addressed to officials to administer primary rules). Secondary rules are further divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). Two of Hart's students continued the debate: In his book Law's Empire , Ronald Dworkin attacked Hart and
2921-472: Is an "authority" to mediate people's interests. Oliver Wendell Holmes defined law as "the prophecies of what the courts will do in fact, and nothing more pretentious." In his Treatise on Law , Thomas Aquinas argues that law is a rational ordering of things, which concern the common good, that is promulgated by whoever is charged with the care of the community. This definition has both positivist and naturalist elements. Definitions of law often raise
3048-706: Is apart from the executive, and symbolically enacts laws and acts as representative of the nation. Examples include the President of Germany (appointed by members of federal and state legislatures ), the Queen of the United Kingdom (an hereditary office ), and the President of Austria (elected by popular vote). The other important model is the presidential system , found in the United States and in Brazil . In presidential systems,
3175-513: Is authority, identifiable purely through social sources and without reference to moral reasoning. In his view, any categorisation of rules beyond their role as authoritative instruments in mediation is best left to sociology , rather than jurisprudence. The history of law links closely to the development of civilization . Ancient Egyptian law, dating as far back as 3000 BC, was based on the concept of Ma'at and characterised by tradition, rhetorical speech, social equality and impartiality. By
3302-532: Is deductively valid to say that the existence of an objective morality implies the existence of God and vice versa. Jews , Christians , and Muslims traditionally believe that justice is a present, real, right, and, specifically, governing concept along with mercy , and that justice is ultimately derived from and held by God . According to the Bible , such institutions as the Mosaic Law were created by God to require
3429-404: Is fair based on what goods are to be distributed, between whom they are to be distributed, and what is the proper distribution. Egalitarians suggest justice can only exist within the coordinates of equality. Theories of retributive justice say justice is served by punishing wrongdoers, whereas restorative justice (also sometimes called "reparative justice") is an approach to justice that focuses on
3556-471: Is just, and what anyone else does or does not have or need is irrelevant. On the basis of this theory of distributive justice, Nozick said that all attempts to redistribute goods according to an ideal pattern, without the consent of their owners, are theft. In particular, redistributive taxation is theft. Some property rights theorists (such as Nozick) also take a consequentialist view of distributive justice and say that property rights based justice also has
3683-467: Is law?" There have been several attempts to produce "a universally acceptable definition of law". In 1972, Baron Hampstead suggested that no such definition could be produced. McCoubrey and White said that the question "what is law?" has no simple answer. Glanville Williams said that the meaning of the word "law" depends on the context in which that word is used. He said that, for example, " early customary law " and " municipal law " were contexts where
3810-443: Is not a matter of the whole distribution matching an ideal pattern , but of each individual entitlement having the right kind of history . It is just that a person has some good (especially, some property right ) if and only if they came to have it by a history made up entirely of events of two kinds: If the chain of events leading up to the person having something meets this criterion, they are entitled to it: that they possess it
3937-399: Is proportionate to their contribution. They are in the right place, always striving to do their best, and reciprocating what they receive in a fair and equitable manner. This applies both at the individual level and at the organizational and societal levels. To illustrate these ideas, Plato describes a person as having three parts: reason, spirit, and desire. These parallel the three parts of
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4064-537: Is stronger in civil law countries, particularly those with a separate system of administrative courts ; by contrast, the public-private law divide is less pronounced in common law jurisdictions. Law provides a source of scholarly inquiry into legal history , philosophy , economic analysis and sociology . Law also raises important and complex issues concerning equality, fairness, and justice . The word law , attested in Old English as lagu , comes from
4191-441: Is that law is a system of rules and guidelines which are enforced through social institutions to govern behaviour. In The Concept of Law , H. L. A. Hart argued that law is a "system of rules"; John Austin said law was "the command of a sovereign, backed by the threat of a sanction"; Ronald Dworkin describes law as an "interpretive concept" to achieve justice in his text titled Law's Empire ; and Joseph Raz argues law
4318-994: Is the Supreme Court ; in Australia, the High Court ; in India, the Supreme Court of India ; in the UK, the Supreme Court ; in Germany, the Bundesverfassungsgericht ; and in France, the Cour de Cassation . For most European countries the European Court of Justice in Luxembourg can overrule national law, when EU law is relevant. The European Court of Human Rights in Strasbourg allows citizens of
4445-455: Is the concept of cardinal virtues , of which it is one. Metaphysical justice has often been associated with concepts of fate , reincarnation or Divine Providence , i.e., with a life in accordance with a cosmic plan. The equivalence of justice and fairness has been historically and culturally established. In his A Theory of Justice , John Rawls used a social contract argument to show that justice, and especially distributive justice,
4572-614: Is the concept that individuals are to be treated in a manner that is equitable and fair. A society in which justice has been achieved would be one in which individuals receive what they "deserve". The interpretation of what "deserve" means draws on a variety of fields and philosophical branches including ethics , rationality , law , religion , equity and fairness. The state may be said to pursue justice by operating courts and enforcing their rulings. A variety of philosophical and moral theories have been advanced to inform understanding of justice. Early theories of justice were set out by
4699-488: Is the interest of the strong – merely a name for what the powerful or cunning ruler has imposed on the people. Advocates of the social contract say that justice is derived from the mutual agreement of everyone; or, in many versions, from what they would agree to under hypothetical conditions including equality and absence of bias. This account is considered further below, under ' Justice as Fairness '. The absence of bias refers to an equal ground for all people involved in
4826-486: Is the legal systems in communist states such as the former Soviet Union and the People's Republic of China . Academic opinion is divided on whether it is a separate system from civil law, given major deviations based on Marxist–Leninist ideology, such as subordinating the judiciary to the executive ruling party. There are distinguished methods of legal reasoning (applying the law) and methods of interpreting (construing)
4953-563: Is to make laws, since they are acts of the general will ; nor whether the prince is above the law, since he is a member of the State; nor whether the law can be unjust, since no one is unjust to himself; nor how we can be both free and subject to the laws, since they are but registers of our wills. Jean-Jacques Rousseau, The Social Contract , II, 6. The philosophy of law is commonly known as jurisprudence. Normative jurisprudence asks "what should law be?", while analytic jurisprudence asks "what
5080-409: Is usually understood as some combination of talent and hard work. According to needs -based theories, goods, especially such basic goods as food, shelter and medical care, should be distributed to meet individuals' basic needs for them. According to contribution -based theories, goods should be distributed to match an individual's contribution to the overall social good. Social justice encompasses
5207-683: The Manusmriti (c. 100–300 AD) were foundational treatises in India, and comprise texts considered authoritative legal guidance. Manu's central philosophy was tolerance and pluralism , and was cited across Southeast Asia. During the Muslim conquests in the Indian subcontinent , sharia was established by the Muslim sultanates and empires, most notably Mughal Empire 's Fatawa-e-Alamgiri , compiled by emperor Aurangzeb and various scholars of Islam. In India,
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5334-454: The "is" and what "ought to be" problem. Bentham and Austin argued for law's positivism ; that real law is entirely separate from "morality". Kant was also criticised by Friedrich Nietzsche , who rejected the principle of equality, and believed that law emanates from the will to power , and cannot be labeled as "moral" or "immoral". In 1934, the Austrian philosopher Hans Kelsen continued
5461-497: The Codex Hammurabi . The most intact copy of these stelae was discovered in the 19th century by British Assyriologists , and has since been fully transliterated and translated into various languages, including English, Italian, German, and French. The Old Testament dates back to 1280 BC and takes the form of moral imperatives as recommendations for a good society. The small Greek city-state, ancient Athens , from about
5588-591: The Council of Europe member states to bring cases relating to human rights issues before it. Some countries allow their highest judicial authority to overrule legislation they determine to be unconstitutional . For example, in Brown v. Board of Education , the United States Supreme Court nullified many state statutes that had established racially segregated schools, finding such statutes to be incompatible with
5715-478: The Early Middle Ages , Roman law was rediscovered around the 11th century when medieval legal scholars began to research Roman codes and adapt their concepts to the canon law , giving birth to the jus commune . Latin legal maxims (called brocards ) were compiled for guidance. In medieval England, royal courts developed a body of precedent which later became the common law . A Europe-wide Law Merchant
5842-559: The English Court of Common Pleas had five. This powerful and tight-knit judiciary gave rise to a systematised process of developing common law. As time went on, many felt that the common law was overly systematised and inflexible, and increasing numbers of citizens petitioned the King to override the common law. On the King's behalf, the Lord Chancellor started giving judgments to do what
5969-1218: The Enlightenment . Then, in the 19th century, both France, with the Code Civil , and Germany, with the Bürgerliches Gesetzbuch , modernised their legal codes. Both these codes heavily influenced not only the law systems of the countries in continental Europe but also the Japanese and Korean legal traditions. Today, countries that have civil law systems range from Russia and Turkey to most of Central and Latin America . In common law legal systems, decisions by courts are explicitly acknowledged as "law" on equal footing with legislative statutes and executive regulations . The "doctrine of precedent", or stare decisis (Latin for "to stand by decisions") means that decisions by higher courts bind lower courts to assure that similar cases reach similar results. In contrast , in civil law systems, legislative statutes are typically more detailed, and judicial decisions are shorter and less detailed because
6096-469: The Flood Control Act of 1917 , which was the first act aimed exclusively at controlling floods. The Great Mississippi Flood of 1927 led to substantial flood control funding. And a series of floods in 1935 and 1936 across the nation were critical in the passage of the Flood Control Act of 1936 . Law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition
6223-551: The Fourteenth Amendment to the United States Constitution . A judiciary is theoretically bound by the constitution, just as all other government bodies are. In most countries judges may only interpret the constitution and all other laws. But in common law countries, where matters are not constitutional, the judiciary may also create law under the doctrine of precedent . The UK, Finland and New Zealand assert
6350-645: The French , but mostly the German Civil Code. This partly reflected Germany's status as a rising power in the late 19th century. Similarly, traditional Chinese law gave way to westernisation towards the final years of the Qing Dynasty in the form of six private law codes based mainly on the Japanese model of German law. Today Taiwanese law retains the closest affinity to the codifications from that period, because of
6477-527: The Hindu legal tradition, along with Islamic law, were both supplanted by common law when India became part of the British Empire . Malaysia, Brunei, Singapore and Hong Kong also adopted the common law system. The Eastern Asia legal tradition reflects a unique blend of secular and religious influences. Japan was the first country to begin modernising its legal system along Western lines, by importing parts of
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#17328444090966604-586: The Israelites to live by and apply God's standards of justice. The Hebrew Bible describes God as saying about the Judeo-Christian-Islamic patriarch Abraham : "No, for I have chosen him, that he may charge his children and his household after him to keep the way of the Lord by doing righteousness and justice;...." ( Genesis 18:19, NRSV) . The Psalmist describes God as having "Righteousness and justice [as]
6731-654: The Latin Church sui juris . The Eastern Catholic Churches, which developed different disciplines and practices, are governed by the Code of Canons of the Eastern Churches . The canon law of the Catholic Church influenced the common law during the medieval period through its preservation of Roman law doctrine such as the presumption of innocence . Roman Catholic canon law is a fully developed legal system, with all
6858-474: The Old Norse word lǫg . The singular form lag meant ' something laid or fixed ' while its plural meant ' law ' . But what, after all, is a law? [...] When I say that the object of laws is always general, I mean that law considers subjects en masse and actions in the abstract, and never a particular person or action. [...] On this view, we at once see that it can no longer be asked whose business it
6985-608: The Quran has some law, and it acts as a source of further law through interpretation, Qiyas (reasoning by analogy), Ijma (consensus) and precedent . This is mainly contained in a body of law and jurisprudence known as Sharia and Fiqh respectively. Another example is the Torah or Old Testament , in the Pentateuch or Five Books of Moses. This contains the basic code of Jewish law, which some Israeli communities choose to use. The Halakha
7112-676: The absolutist theory of Thomas Hobbes ' Leviathan . Sun Yat-sen 's Five Power Constitution for the Republic of China took the separation of powers further by having two additional branches of government—a Control Yuan for auditing oversight and an Examination Yuan to manage the employment of public officials. Max Weber and others reshaped thinking on the extension of state. Modern military, policing and bureaucratic power over ordinary citizens' daily lives pose special problems for accountability that earlier writers such as Locke or Montesquieu could not have foreseen. The custom and practice of
7239-597: The "basic pattern of legal reasoning is reasoning by example"—that is, reasoning by comparing outcomes in cases resolving similar legal questions. In a U.S. Supreme Court case regarding procedural efforts taken by a debt collection company to avoid errors, Justice Sotomayor cautioned that "legal reasoning is not a mechanical or strictly linear process". Jurimetrics is the formal application of quantitative methods, especially probability and statistics , to legal questions. The use of statistical methods in court cases and law review articles has grown massively in importance in
7366-424: The 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code , which consisted of casuistic statements ("if … then ..."). Around 1760 BC, King Hammurabi further developed Babylonian law , by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as stelae , for the entire public to see; this became known as
7493-467: The 6th century, which were rediscovered by 11th century Italy. Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class. Instead a lay magistrate , iudex , was chosen to adjudicate. Decisions were not published in any systematic way, so any case law that developed was disguised and almost unrecognised. Each case was to be decided afresh from
7620-431: The 8th century BC was the first society to be based on broad inclusion of its citizenry, excluding women and enslaved people . However, Athens had no legal science or single word for "law", relying instead on the three-way distinction between divine law ( thémis ), human decree ( nomos ) and custom ( díkē ). Yet Ancient Greek law contained major constitutional innovations in the development of democracy . Roman law
7747-624: The Ancient Greek philosophers Plato , in his work The Republic , and Aristotle , in his Nicomachean Ethics and Politics . Religious explanations of justice can be grouped under the divine command theory , which holds that justice issues from God. Western thinkers later advanced different theories about where the foundations of justice lie. In the 17th century, philosophers such as John Locke said justice derives from natural law . Social contract theory, advocated by thinkers such as Jean-Jacques Rousseau , says that justice derives from
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#17328444090967874-488: The King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country. A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralised. In 1297, for instance, while the highest court in France had fifty-one judges,
8001-502: The Quran as its constitution , and is governed on the basis of Islamic law. Iran has also witnessed a reiteration of Islamic law into its legal system after 1979. During the last few decades, one of the fundamental features of the movement of Islamic resurgence has been the call to restore the Sharia, which has generated a vast amount of literature and affected world politics . Socialist law
8128-1262: The Sharia: the Supreme Constitutional Court of Egypt may invalidate such laws, and in Iran the Guardian Council ensures the compatibility of the legislation with the "criteria of Islam". Prominent examples of legislatures are the Houses of Parliament in London, the Congress in Washington, D.C., the Bundestag in Berlin, the Duma in Moscow, the Parlamento Italiano in Rome and the Assemblée nationale in Paris. By
8255-430: The U.S. , the two systems were merged . In developing the common law, academic writings have always played an important part, both to collect overarching principles from dispersed case law and to argue for change. William Blackstone , from around 1760, was the first scholar to collect, describe, and teach the common law. But merely in describing, scholars who sought explanations and underlying structures slowly changed
8382-532: The West begins, in Plato 's Republic , with the question, 'What is Justice?' According to most contemporary theories of justice, justice is overwhelmingly important: John Rawls claims that "Justice is the first virtue of social institutions, as truth is of systems of thought." In classical approaches, evident from Plato through to Rawls , the concept of 'justice' is always construed in logical or 'etymological' opposition to
8509-567: The adjudicator is only writing to decide the single case, rather than to set out reasoning that will guide future courts. Common law originated from England and has been inherited by almost every country once tied to the British Empire (except Malta, Scotland , the U.S. state of Louisiana , and the Canadian province of Quebec ). In medieval England during the Norman conquest , the law varied shire-to-shire based on disparate tribal customs. The concept of
8636-463: The best consequences overall (perhaps executing a few suspected shoplifters live on television would be an effective deterrent to shoplifting, for instance). It also suggests that punishment might turn out never to be right, depending on the facts about what actual consequences it has. According to the utilitarian, justice requires the maximization of the total or average welfare across all relevant individuals. This may require sacrifice of some for
8763-508: The best consequences. These rules may turn out to be familiar ones such as keeping contracts ; but equally, they may not, depending on the facts about real consequences. Either way, what is important is those consequences, and justice is important, if at all, only as derived from that fundamental standard. Mill tries to explain our mistaken belief that justice is overwhelmingly important by arguing that it derives from two natural human tendencies: our desire to retaliate against those who hurt us, or
8890-440: The brain and that, "Fairness is activating the same part of the brain that responds to food in rats... This is consistent with the notion that being treated fairly satisfies a basic need". Research conducted in 2003 at Emory University involving capuchin monkeys demonstrated that other cooperative animals also possess such a sense and that " inequity aversion may not be uniquely human". Instrumental theories of justice look at
9017-640: The concept connecting law to justice, since law cannot be applied without reference to justice. In that context, justice is seen as 'the rationale and the ethical foundation of equity'. One approach towards equity in justice is community policing . Marxism is a needs-based theory, expressed succinctly in Marx's slogan " from each according to his ability, to each according to his need ". Relational justice examines individual connections and societal relationships, focusing on normative and political aspects. Rawls' theory of justice aims to distribute social goods to benefit
9144-415: The concept of equality, including Rawls' theory of justice as fairness. For Ronald Dworkin, a complex notion of equality is the sovereign political virtue. Dworkin raises the question of whether society is under a duty of justice to help those responsible for the fact that they need help. Complications arise in distinguishing matters of choice and matters of chance, as well as justice for future generations in
9271-458: The concept of injustice. Such approaches cite various examples of injustice, as problems which a theory of justice must overcome. A number of post-World War II approaches do, however, challenge that seemingly obvious dualism between those two concepts. Justice can be thought of as distinct from benevolence , charity , prudence , mercy , generosity , or compassion , although these dimensions are regularly understood to also be interlinked. Justice
9398-404: The concept of social justice was meaningless, saying that justice is a result of individual behavior and unpredictable market forces. Social justice is closely related to the concept of relational justice, which is about the just relationship with individuals who possess features in common such as nationality, or who are engaged in cooperation or negotiation. In legal theory , equity is seen as
9525-424: The consequences of punishment for wrongdoing, looking at questions such as: In broad terms, utilitarian theories look forward to the future consequences of punishment, retributive theories look back to particular acts of wrongdoing and attempt to match them with appropriate punishment, and restorative theories look at the needs of victims and society and seek to repair the harms from wrongdoing. According to
9652-468: The decision in our own favor. So, the decision-in-ignorance models fairness, because it excludes selfish bias . Rawls said that each of us would reject the utilitarian theory of justice that we should maximize welfare (see below) because of the risk that we might turn out to be someone whose own good is sacrificed for greater benefits for others. Instead, we would endorse Rawls's two principles of justice : This imagined choice justifies these principles as
9779-575: The defining features of any legal system. Civil law is the legal system used in most countries around the world today. In civil law the sources recognised as authoritative are, primarily, legislation —especially codifications in constitutions or statutes passed by government—and custom . Codifications date back millennia, with one early example being the Babylonian Codex Hammurabi . Modern civil law systems essentially derive from legal codes issued by Byzantine Emperor Justinian I in
9906-508: The differences among social groups offers a better approach, one which acknowledges unjust power relations among individuals, groups, and institutional structures. Young Kim also takes a relational approach to the question of justice, but departs from Iris Marion Young's political advocacy of group rights and instead, he emphasizes the individual and moral aspects of justice. As to its moral aspects, he said that justice includes responsible actions based on rational and autonomous moral agency, with
10033-434: The effect of maximizing the overall wealth of an economic system. They explain that voluntary (non-coerced) transactions always have a property called Pareto efficiency . The result is that the world is better off in an absolute sense and no one is worse off. They say that respecting property rights maximizes the number of Pareto efficient transactions in the world and minimized the number of non-Pareto efficient transactions in
10160-406: The executive acts as both head of state and head of government, and has power to appoint an unelected cabinet. Under a presidential system, the executive branch is separate from the legislature to which it is not accountable. Although the role of the executive varies from country to country, usually it will propose the majority of legislation, and propose government agenda. In presidential systems,
10287-464: The executive often has the power to veto legislation. Most executives in both systems are responsible for foreign relations , the military and police, and the bureaucracy. Ministers or other officials head a country's public offices, such as a foreign ministry or defence ministry . The election of a different executive is therefore capable of revolutionising an entire country's approach to government. Justice Justice , in its broadest sense,
10414-408: The extent that human welfare involves them. But even then, such demands as human rights would only be elements in the calculation of overall welfare, not uncrossable barriers to action. Retributive justice argues that consequentialism is wrong, as it argues that all guilty individuals deserve appropriate punishment, based on the conviction that punishment should be proportional to the crime and for all
10541-426: The feeling of self-defense and our ability to put ourselves imaginatively in another's place, sympathy. So, when we see someone harmed, we project ourselves into their situation and feel a desire to retaliate on their behalf. If this process is the source of our feelings about justice, that ought to undermine our confidence in them. It has been said that 'systematic' or 'programmatic' political and moral philosophy in
10668-436: The foundation of [His] throne;...." (Psalms 89:14, NRSV). The New Testament also describes God and Jesus Christ as having and displaying justice, often in comparison with God displaying and supporting mercy ( Matthew 5:7). For advocates of the theory that justice is part of natural law (e.g., John Locke ), justice inheres in the nature of man. In Republic by Plato , the character Thrasymachus argues that justice
10795-405: The gods because it is morally good, or is it morally good because it is commanded by the gods?" The implication is that if the latter is true, then justice is beyond mortal understanding; if the former is true, then morality exists independently from the gods, and is therefore subject to the judgment of mortals. A response , popularized in two contexts by Immanuel Kant and C. S. Lewis , is that it
10922-870: The golden age of Roman law and aimed to restore it to the peak it had reached three centuries before." The Justinian Code remained in force in the East until the fall of the Byzantine Empire . Western Europe, meanwhile, relied on a mix of the Theodosian Code and Germanic customary law until the Justinian Code was rediscovered in the 11th century, which scholars at the University of Bologna used to interpret their own laws. Civil law codifications based closely on Roman law, alongside some influences from religious laws such as canon law , continued to spread throughout Europe until
11049-405: The good of others, so long as everyone's good is taken impartially into account. Utilitarianism, in general, says that the standard of justification for actions, institutions, or the whole world, is impartial welfare consequentialism , and only indirectly, if at all, to do with rights , property , need , or any other non-utilitarian criterion. These other criteria might be indirectly important, to
11176-558: The guilty. However, it is sometimes said that retributivism is merely revenge in disguise. However, there are differences between retribution and revenge: the former is impartial and has a scale of appropriateness, whereas the latter is personal and potentially unlimited in scale. Restorative justice attempts to repair the harm that was done to the victims. It encourages active participation from victims and encourages offenders to take responsibility for their actions. Restorative justice fosters dialogue between victim and offender and shows
11303-517: The highest rates of victim satisfaction and offender accountability. Meta-analyses of the effectivity of restorative justice show no improvement in recidivism . Some modern philosophers have said that Utilitarian and Retributive theories are not mutually exclusive. For example, Andrew von Hirsch , in his 1976 book Doing Justice , suggested that we have a moral obligation to punish greater crimes more than lesser ones. However, so long as we adhere to that constraint then utilitarian ideals would play
11430-524: The idea of the rule of law because he did not accept the primacy of abstract normative principles over concrete political positions and decisions. Therefore, Schmitt advocated a jurisprudence of the exception ( state of emergency ), which denied that legal norms could encompass all of the political experience. Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fiction in The Concept of Law . Hart argued law
11557-428: The ideal of parliamentary sovereignty , whereby the unelected judiciary may not overturn law passed by a democratic legislature. In communist states , such as China, the courts are often regarded as parts of the executive, or subservient to the legislature; governmental institutions and actors exert thus various forms of influence on the judiciary. In Muslim countries, courts often examine whether state laws adhere to
11684-485: The individual as the proper bearer of rights and responsibilities. Politically, he maintains that the proper context for justice is a form of liberalism with the traditional elements of liberty and equality, together with the concepts of diversity and tolerance. The phrase " Justice delayed is justice denied " refers to the problem of slow justice. The right to speedy trial is in some jurisdictions enshrined. Higher quality justice tends to be speedy. In criminal law ,
11811-408: The just relationship between individuals and their society, often considering how privileges, opportunities, and wealth ought to be distributed among individuals. Social justice is also associated with social mobility , especially the ease with which individuals and families may move between social strata . Social justice is distinct from cosmopolitanism , which is the idea that all people belong to
11938-564: The last few decades. It is a real unity of them all in one and the same person, made by covenant of every man with every man, in such manner as if every man should say to every man: I authorise and give up my right of governing myself to this man, or to this assembly of men, on this condition; that thou givest up, thy right to him, and authorise all his actions in like manner. Thomas Hobbes, Leviathan , XVII The main institutions of law in industrialised countries are independent courts , representative parliaments, an accountable executive,
12065-446: The law more difficult. A government usually leads the process, which can be formed from Members of Parliament (e.g. the UK or Germany). However, in a presidential system, the government is usually formed by an executive and his or her appointed cabinet officials (e.g. the United States or Brazil). The executive in a legal system serves as the centre of political authority of the State . In
12192-433: The law, not for equality of outcome . Classical liberalism opposes pursuing group rights at the expense of individual rights . In addition to equality, individual liberty serves as a core notion of classical liberalism. As to the liberty component, British social and political theorist, philosopher, and historian of ideas Isaiah Berlin identifies positive and negative liberty in "Two Concepts of Liberty", subscribing to
12319-622: The law. In common law systems, judges may make binding case law through precedent, although on occasion this may be overturned by a higher court or the legislature. Religious law is in use in some religious communities and states, and has historically influenced secular law. The scope of law can be divided into two domains: public law concerns government and society, including constitutional law , administrative law , and criminal law ; while private law deals with legal disputes between parties in areas such as contracts , property , torts , delicts and commercial law . This distinction
12446-731: The law. The former are legal syllogism , which holds sway in civil law legal systems, analogy , which is present in common law legal systems, especially in the US, and argumentative theories that occur in both systems. The latter are different rules (directives) of legal interpretation such as directives of linguistic interpretation, teleological interpretation or systemic interpretation as well as more specific rules, for instance, golden rule or mischief rule . There are also many other arguments and cannons of interpretation which altogether make statutory interpretation possible. Law professor and former United States Attorney General Edward H. Levi noted that
12573-577: The laws of the State, which mirrors the (theoretical) unimportance of judges' decisions for future cases in civil law systems today. From 529 to 534 AD the Byzantine Emperor Justinian I codified and consolidated Roman law up until that point, so that what remained was one-twentieth of the mass of legal texts from before. This became known as the Corpus Juris Civilis . As one legal historian wrote, "Justinian consciously looked back to
12700-426: The legal profession is an important part of people's access to justice , whilst civil society is a term used to refer to the social institutions, communities and partnerships that form law's political basis. A judiciary is a number of judges mediating disputes to determine outcome. Most countries have systems of appeal courts, with an apex court as the ultimate judicial authority. In the United States, this authority
12827-521: The meaning of what is "deserved". The main distinction is between theories that say the basis of just deserts ought to be held equally by everyone, and therefore derive egalitarian accounts of distributive justice – and theories that say the basis of just deserts is unequally distributed on the basis of, for instance, hard work, and therefore derive accounts of distributive justice by which some should have more than others. Studies at UCLA in 2008 have indicated that reactions to fairness are "wired" into
12954-472: The mid-1940s, efforts have been made, in country after country, to bring Sharia law more into line with modern conditions and conceptions. In modern times, the legal systems of many Muslim countries draw upon both civil and common law traditions as well as Islamic law and custom. The constitutions of certain Muslim states, such as Egypt and Afghanistan, recognise Islam as the religion of the state, obliging legislature to adhere to Sharia. Saudi Arabia recognises
13081-510: The military and police, bureaucratic organisation, the legal profession and civil society itself. John Locke, in his Two Treatises of Government , and Baron de Montesquieu in The Spirit of the Laws , advocated for a separation of powers between the political, legislature and executive bodies. Their principle was that no person should be able to usurp all powers of the state , in contrast to
13208-669: The most influential. In contrast to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and easy for judges to apply. However, today there are signs that civil and common law are converging. EU law is codified in treaties, but develops through de facto precedent laid down by the European Court of Justice . Ancient India and China represent distinct traditions of law, and have historically had independent schools of legal theory and practice. The Arthashastra , probably compiled around 100 AD (although it contains older material), and
13335-424: The mutual agreement of members of society to be governed in a political order. In the 19th century, utilitarian philosophers such as John Stuart Mill said that justice is served by what creates the best outcomes for the greatest number of people. Modern frameworks include concepts such as distributive justice , egalitarianism , retributive justice , and restorative justice . Distributive justice considers what
13462-505: 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. Until the 18th century, Sharia law was practiced throughout the Muslim world in a non-codified form, with the Ottoman Empire 's Mecelle code in the 19th century being a first attempt at codifying elements of Sharia law. Since
13589-425: The needs of victims and offenders. Justice, according to Plato , is about balance and harmony. It represents the right relationship between conflicting aspects within an individual or a community. He defines justice as everyone having and doing what they are responsible for or what belongs to them. In other words, a just person is someone who contributes to society according to their unique abilities and receives what
13716-538: The notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas , notably his Treatise on Law . Hugo Grotius , the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse—as Aristotle had indicated—and reason. Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature". Jeremy Bentham and his student Austin, following David Hume , believed that this conflated
13843-428: The poor, but does not consider power relations, political structures, or social meanings. Even Rawls' self-respect is not compatible with distribution. Iris Marion Young charges that distributive accounts of justice fail to provide an adequate way of conceptualizing political justice in that they fail to take into account many of the demands of ordinary life and that a relational view of justice grounded upon understanding
13970-564: The positivist tradition in his book the Pure Theory of Law . Kelsen believed that although law is separate from morality, it is endowed with "normativity", meaning we ought to obey it. While laws are positive "is" statements (e.g. the fine for reversing on a highway is €500); law tells us what we "should" do. Thus, each legal system can be hypothesised to have a ' basic norm ' ( German : Grundnorm ) instructing us to obey. Kelsen's major opponent, Carl Schmitt , rejected both positivism and
14097-483: The positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an " interpretive concept" that requires judges to find the best fitting and most just solution to a legal dispute, given their Anglo-American constitutional traditions. Joseph Raz , on the other hand, defended the positivist outlook and criticised Hart's "soft social thesis" approach in The Authority of Law . Raz argues that law
14224-416: The principle of representative government people vote for politicians to carry out their wishes. Although countries like Israel, Greece, Sweden and China are unicameral , most countries are bicameral , meaning they have two separately appointed legislative houses. In the 'lower house' politicians are elected to represent smaller constituencies . The 'upper house' is usually elected to represent states in
14351-536: The principles of justice for us, because we would agree to them in a fair decision procedure. Rawls's theory distinguishes two kinds of goods – (1) the good of liberty rights and (2) social and economic goods, i.e. wealth, income and power – and applies different distributions to them – equality between citizens for (1), equality unless inequality improves the position of the worst off for (2). In one sense, theories of distributive justice may assert that everyone should get what they deserve. Theories vary on
14478-469: The question of the extent to which law incorporates morality. John Austin 's utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience". Natural lawyers , on the other hand, such as Jean-Jacques Rousseau , argue that law reflects essentially moral and unchangeable laws of nature. The concept of "natural law" emerged in ancient Greek philosophy concurrently and in connection with
14605-431: The redistribution of resources that he advocates. Law raises important and complex issues about equality, fairness, and justice. There is an old saying that ' All are equal before the law '. The belief in equality before the law is called legal egalitarianism. In criticism of this belief, the author Anatole France said in 1894, "In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in
14732-402: The sharing of many features traditionally considered typical of either common law or civil law. The third type of legal system is religious law, based on scriptures . The specific system that a country is ruled by is often determined by its history, connections with other countries, or its adherence to international standards. The sources that jurisdictions adopt as authoritatively binding are
14859-454: The split between Chiang Kai-shek 's nationalists, who fled there, and Mao Zedong 's communists who won control of the mainland in 1949. The current legal infrastructure in the People's Republic of China was heavily influenced by Soviet Socialist law , which essentially prioritises administrative law at the expense of private law rights. Due to rapid industrialisation, today China is undergoing
14986-417: The streets, and steal loaves of bread." With this saying, France illustrated the fundamental shortcoming of a theory of legal equality that remains blind to social inequality; the same law applied to all may have disproportionately harmful effects on the least powerful. According to meritocratic theories, goods, especially wealth and social status , should be distributed to match individual merit , which
15113-473: The theory assert that God must be obeyed because of the nature of God's relationship with humanity, others assert that God must be obeyed because God is goodness itself, and thus doing God's command would be best for everyone. An early meditation on the divine command theory by Plato can be found in his dialogue, Euthyphro . Called the Euthyphro dilemma , it goes as follows: "Is what is morally good commanded by
15240-444: The utilitarian, justice is the maximization of the total or average welfare across all relevant individuals. Utilitarianism fights crime in three ways: So, the reason for punishment is the maximization of welfare, and punishment should be of whomever, and of whatever form and severity, are needed to meet that goal. This may sometimes justify punishing the innocent, or inflicting disproportionately severe punishments, when that will have
15367-614: The way the law actually worked. Religious law is explicitly based on religious precepts. Examples include the Jewish Halakha and Islamic Sharia —both of which translate as the "path to follow". Christian canon law also survives in some church communities. Often the implication of religion for law is unalterability because the word of God cannot be amended or legislated against by judges or governments. Nonetheless, most religious jurisdictions rely on further human elaboration to provide for thorough and detailed legal systems. For instance,
15494-418: The word "law" had two different and irreconcilable meanings. Thurman Arnold said that it is obvious that it is impossible to define the word "law" and that it is also equally obvious that the struggle to define that word should not ever be abandoned. It is possible to take the view that there is no need to define the word "law" (e.g. "let's forget about generalities and get down to cases "). One definition
15621-425: The world (i.e. transactions where someone is made worse off). The result is that the world will have generated the greatest total benefit from the limited, scarce resources available in the world. Further, this will have been accomplished without taking anything away from anyone unlawfully. Equality before the law is one of the basic principles of classical liberalism . Classical liberalism calls for equality before
15748-467: Was equitable in a case. From the time of Sir Thomas More , the first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery . At first, equity was often criticised as erratic. Over time, courts of equity developed solid principles , especially under Lord Eldon . In the 19th century in England, and in 1937 in
15875-490: Was formed so that merchants could trade with common standards of practice rather than with the many splintered facets of local laws. The Law Merchant, a precursor to modern commercial law, emphasised the freedom to contract and alienability of property. As nationalism grew in the 18th and 19th centuries, the Law Merchant was incorporated into countries' local law under new civil codes. The Napoleonic and German Codes became
16002-461: Was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists and were highly sophisticated. Over the centuries between the rise and decline of the Roman Empire , law was adapted to cope with the changing social situations and underwent major codification under Theodosius II and Justinian I . Although codes were replaced by custom and case law during
16129-874: Was the Swamp Land Act of 1850 . A flood on the Mississippi River in 1874 led to the creation of the Mississippi River Commission in 1879. Booming steamboat traffic on the Missouri River and a flood in 1881 led to the creation of the Missouri River Commission in 1884, but it was abolished by the River and Harbor Act of 1902 . Floods on the Mississippi, Ohio, and other rivers in the Northeast led to
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