Misplaced Pages

#964035

139-401: An outlaw , in its original and legal meaning, is a person declared as outside the protection of the law . In pre-modern societies, all legal protection was withdrawn from the criminal, so anyone was legally empowered to persecute or kill them. Outlawry was thus one of the harshest penalties in the legal system. In early Germanic law , the death penalty is conspicuously absent, and outlawing

278-625: 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

417-417: 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

556-652: 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

695-440: 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

834-553: A discussion in Omission (criminal law) ). It also can be contrasted against the United States Unborn Victims of Violence Act of 2004. Under this law, the intent to cause harm ( mens rea ) from the initial assault applies to any unborn child similarly to any other unplanned victim, and death or injury to the foetus is charged as a separate homicide whether or not the accused had actual knowledge or intent with respect to

973-451: A fight among a crowd of boys in which no more than common assaults are contemplated but in which one produces a knife of which the others know nothing and kills with it. As the Court of Appeal, Criminal Division, explained in R. v Stewart 1995 such shared intent [to commit serious harm] renders each party criminally liable for the acts done in the course of carrying it out. It is only where

1112-430: A foetus was not a contributory cause), nor having malice deliberately directed at it, was described as legally "too far" to support a murder charge. However, they did note that English law allowed for alternative remedies in some cases, and specifically those based on "unlawful act" and "gross negligence" manslaughter which does not require intent to harm the victim: Lord Hope has, however, ... [directed] attention to

1251-442: 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

1390-403: A judgment of (criminal) outlawry was one of the harshest penalties in the legal system since the outlaw could not use the legal system for protection, e.g., from mob justice . To be declared an outlaw was to suffer a form of civil or social death. The outlaw was debarred from all civilized society. No one was allowed to give him food, shelter, or any other sort of support—to do so was to commit

1529-418: 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 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

SECTION 10

#1733084650965

1668-416: A partial defence which reduces murder to the offence of infanticide under section 1(1) of that Act. If a partial defence is successful, it will allow the sitting judge full discretion as to the sentence given to the offender; these can range from a conditional discharge to a life sentence (which accounts for around 10 per cent of voluntary manslaughter sentences). Proceedings against a person for murder, if

1807-453: A person engages in an unlawful act, they are responsible for its consequences, including (a) harm to others unintended to be harmed, and (b) types of harm they did not intend. As such in the above case where a husband stabbed his pregnant wife, causing premature birth, and the baby died due to that premature birth, in English law no murder took place. "Until she had been born alive and acquired

1946-414: A person may also be held liable for the unlawful actions of others he or she acts with, even if not agreed or planned, if there is a common (or shared) intention (sometimes called a "common purpose"). In the 1998 case R v Greatrex (David Anthony) , the Court of Appeal summarised some of the legal circumstances this can apply: [There are] two distinct paradigms of indirect responsibility for murder. One

2085-591: 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

2224-415: A separate existence she could not be the victim of homicide". The requirements for murder under English law, involving transfer of malice to a foetus, and then (notionally) from a foetus to the born child with legal personality, who died as a child at a later time despite never having suffered harm as a child (with legal personality), nor even as a foetus having suffered any fatal wound (the injury sustained as

2363-425: A thief was expected to declare the fact without delay; otherwise, the dead man's kindred might clear his name by their oath and require the slayer to pay weregild as for a true man. By the rules of common law, a criminal outlaw did not need to be guilty of the crime for which he was an outlaw. If a man was accused of treason or felony but failed to appear in court to defend himself, he was deemed convicted. If he

2502-404: A third party which places the original attack as a merely a background context, or some unpredictable natural phenomenon, will break the chain. For a killing to amount to murder by a defendant, the defendant must have caused the death of "a reasonable creature in rerum natura ". The phrase as a whole is usually translated as "a life in being", i.e. where the umbilical cord has been severed and

2641-462: 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

2780-495: 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;

2919-532: Is a doctrine that states in some circumstances a person who intends to commit an offence involving harm to one individual and instead (or as well) harms another, may be charged with the latter as a crime – the mens rea (malicious intent) is 'transferred'. It may not apply when the crime which took place was different from the crime intended, although a charge of manslaughter may be possible in such cases. As well as being responsible for any murderous consequences of his or her own unlawful actions that affect others,

SECTION 20

#1733084650965

3058-458: 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

3197-481: Is a virtually certain consequence of the defendant's act (indirect or 'oblique' intent). Also in Moloney , Lord Bridge held that the mens rea of murder need not be aimed at a specific person so, if a terrorist plants a bomb in a public place, it is irrelevant that no specific individual is targeted so long as one or more deaths is virtually certain. Further, it is irrelevant that the terrorist might claim justification for

3336-472: 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

3475-407: Is an outlaw in the first meaning but not the second (one example being William John Bankes ). A fugitive who remains formally entitled to a form of trial if captured alive but avoids capture because of the high risk of conviction and severe punishment if tried is an outlaw in the second sense but not the first ( Sándor Rózsa was tried and sentenced merely to a term of imprisonment when captured). In

3614-706: 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,

3753-513: 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

3892-491: Is defined, at common law rather than by statute , as the unlawful killing of a reasonable person in being under the King or Queen's peace with malice aforethought express or implied. The actus reus ( Latin for "guilty act") of murder was defined in common law by Coke : Murder is when a man of sound memory and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under

4031-436: 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

4170-467: 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

4309-426: Is legally not a separate person from its mother in English law. They described this as outdated and misconceived but legally established as a principle, adding that the foetus might be or not be a person for legal purposes, but could not in modern times be described as a part of its mother. The concept of transferred malice and general malice were also not without difficulties; these are the legal principles that say when

Outlaw - Misplaced Pages Continue

4448-408: Is not excused by the fact that he is an alien enemy, and can, therefore, be murder. The effect of R v Depardo is that the same rule applies where an alien enemy is charged with killing a British subject . See also R v Page . Certain acts are excluded as murder, usually when the place or circumstances were deemed not to be under the King's peace at the time. Examples of killings not under

4587-423: Is not necessary – intent (including common intent) to cause serious injury is sufficient for murder if death results. "Unlawfully" means without lawful justification or excuse. For a killing to amount to murder by a defendant, at the time of death the defendant's acts or omissions must be the operating and most substantial cause of death with no novus actus interveniens (Latin for "new act breaking in") to break

4726-456: Is solely to alleviate pain, is not considered murder. The defences of duress and necessity are not available to a person charged with murder. The statutory defence of marital coercion , before it was abolished, was not available to a wife charged with murder. The following partial defences reduce murder to voluntary manslaughter : Section 1(2) of the Infanticide Act 1938 creates

4865-537: 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

5004-441: 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

5143-994: 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

5282-416: Is the class of case in which, although there is no shared intent to kill or do serious harm, the secondary party knows that the other (usually but not necessarily because he is carrying a weapon) may kill or do serious harm in the course of the venture. (e.g. Chan Wing-Siu v The Queen [1984] 3 AER 877). The test is succinctly summarised in R. v Powell and Daniels 1996 as requiring "subjective realisation by

5421-486: 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)

5560-594: Is the most extreme punishment, presumably amounting to a death sentence in practice. The concept is known from Roman law , as the status of homo sacer , and persisted throughout the Middle Ages . A secondary meaning of outlaw is a person systematically avoiding capture by evasion and violence. These meanings are related and overlapping but not necessarily identical. A fugitive who is declared outside protection of law in one jurisdiction but who receives asylum and lives openly and obedient to local laws in another jurisdiction

5699-501: 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. The philosophy of law is commonly known as jurisprudence. Normative jurisprudence asks "what should law be?", while analytic jurisprudence asks "what

Outlaw - Misplaced Pages Continue

5838-683: 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,

5977-454: 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

6116-497: 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

6255-591: 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

6394-473: The Director of Public Prosecutions and whether a prosecution is deemed "in the public interest". A stated purpose of retaining this discretion is to allow human opinion, rather than codified rules, as a final decider, due to the highly sensitive circumstances typical of such cases, and to reduce the risk of persons killing or being pressured to take their own lives, if the law were codified more concretely. In 2010,

6533-478: 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

6672-512: 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

6811-1218: 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

6950-551: 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

7089-645: 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

SECTION 50

#1733084650965

7228-527: 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

7367-654: 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

7506-474: 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

7645-608: 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

7784-551: The State Opening of Parliament ), romanticised outlaws became stock characters in several fictional settings. This was particularly so in the United States, where outlaws were popular subjects of 19th-century newspaper coverage and stories and 20th-century fiction and Western movies . Thus, "outlaw" is still commonly used to mean those violating the law or, by extension, those living that lifestyle, whether actual criminals evading

7923-472: The United Kingdom , despite multiple bills and proposals proposed to legalise some form of exemption in certain cases, or with certain safeguards, and polls suggesting that "80% of British citizens and 64% of Britain’s general practitioners" favour some form of legalisation. In such cases criminal charges, which may include murder and other unlawful killing charges, depend to some extent on the discretion of

8062-676: 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

8201-402: The chain of causation . Thus, the defendant cannot choose how the victim is to act, nor what personality to have. No matter whether brave or foolish, the defendant must expect the victim to: There are conflicting authorities on the above point, R v Jordan and R v Smith . In short, any contingency that is foreseeable will maintain the chain. Put the other way, only some unexpected act by

8340-413: The common law of England , a "writ of outlawry" made the pronouncement Caput lupinum ("[Let his be] a wolf's head"), equating that person with a wolf in the eyes of the law. Not only was the subject deprived of all legal rights, being outside the "law", but others could kill him on sight as if he were a wolf or other wild animal. Women were declared "waived" rather than outlawed, but it was effectively

8479-597: 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

SECTION 60

#1733084650965

8618-424: 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

8757-467: 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

8896-431: 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

9035-517: The Cartagena fleet to be " piratic ", which allowed any nation to prey on it. Taking the opposite road, some outlaws became political leaders, such as Ethiopia 's Kassa Hailu who became Emperor Tewodros II of Ethiopia . Though the judgment of outlawry is now obsolete (even though it inspired the pro forma Outlawries Bill which is still to this day introduced in the British House of Commons during

9174-674: The DPP was forced to publish the guidelines used by the Crown Prosecution Service to determine whether to bring a criminal prosecution in the case of an assisted suicide following a decision by the House of Lords in a case brought by Debbie Purdy , a woman with multiple sclerosis who sought clarity on whether her husband would be prosecuted if he were to assist her in travelling to Switzerland to end her life at Dignitas . The case Attorney General's Reference No. 3 of 1994 considered in some depth

9313-438: 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,

9452-537: The King's peace include the killing of an enemy combatant during a time of war or other international conflict. In the case of R v Clegg , a soldier in Northern Ireland was convicted of murder after shooting into the back of a fleeing vehicle and killing a joyrider who had driven past the checkpoint he was guarding, although the conviction was later overturned on appeal. In English law, transferred malice (known in some jurisdictions as "transferred intention")

9591-460: The King's peace, with malice aforthought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day of the same. The latter clause (known as the ' year and a day rule ') was abolished in 1996 (see below ). A further historic rule, the felony murder rule , was abolished in the Homicide Act 1957 . Until abolition,

9730-483: The Law Commission published their second report Murder, Manslaughter and Infanticide which examined the law in these areas. The key recommendations included: The first words Coke's definition refer to the M'Naghten Rules on the insanity defence and infancy . If any of the general defences such as self-defence apply, an accused will be acquitted of murder. The defence in the 1860 Eastbourne manslaughter case

9869-677: The Queen's subjects, "whether a constable or not", and without "being accountable for using of any deadly weapon in aid of such apprehension." Similar provisions were passed in Victoria and Queensland . Although the provisions of the New South Wales Felons Apprehension Act were not exercised after the end of the bushranging era, they remained on the statute book until 1976. There have been several instances in military and political conflicts throughout history whereby one side declares

10008-502: 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

10147-1262: 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

10286-430: 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

10425-439: The absence of government. Murder in English law Because murder is generally defined in law as an intent to cause serious harm or injury (alone or with others), combined with a death arising from that intention, there are certain circumstances where a death will be treated as murder even if the defendant did not wish to kill the actual victim. This is called " transferred malice ", and arises in two common cases: Murder

10564-517: The accused that his co-participant may commit murder and, notwithstanding that, his agreement to participate himself". Its counterpart is the situation in R. v Anderson and Morris 1996 where two persons embark on an unlawful but not murderous enterprise and one of them commits a murder which the other had no way of foreseeing. The principle is illustrated in the well-known passage from the speech of Viscount Simmonds, L.C. in Davis v D.P.P. 1954 instancing

10703-407: The act through a political agenda. How or why one person kills could only have relevance to the sentence . For a killing to amount to murder, the actus reus and mens rea must coincide in point of time. The so-called single transaction principle allows a conviction where the defendant has both actus reus and mens rea together during the sequence of events leading to death. In Thabo Meli v R

10842-567: 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

10981-961: The ancient Norse and Icelandic legal code . In early modern times, the term Vogelfrei and its cognates came to be used in Germany, the Low Countries , and Scandinavia , referring to a person stripped of his civil rights being "free" for the taking like a bird. In Germany and Slavic countries during the 15th to 19th centuries, groups of outlaws were composed of former prisoners, soldiers, etc. Hence, they became an important social phenomenon. They lived off of robbery, and local inhabitants from lower classes often supported their activity. The best known are Juraj Jánošík and Jakub Surovec in Slovakia, Oleksa Dovbush in Ukraine, Rózsa Sándor in Hungary, Schinderhannes and Hans Kohlhase in Germany. The concept of outlawry

11120-517: 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 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

11259-451: The baby has a life independently of the mother . Attorney General's Reference No. 3 of 1994 is a relatively recent case involving a murder charge for death of an unborn child. The Law Lords considered the case of a man who stabbed his pregnant wife in an argument. The wife recovered but delivered the baby prematurely. The baby died some time after the premature birth. The cause of death was simply that she had been born prematurely due to

11398-456: The child, or even knowledge of the pregnancy. A killing is not murder if the person killed is not "under the King's peace ". The killing of an alien enemy in the heat of war, and in the actual exercise thereof, is not murder because the alien enemy is not under the King's peace. The killing, otherwise than in the heat of war, and the actual exercise thereof, of an alien enemy, within the kingdom,

11537-423: The crime of aiding and abetting , and to be in danger of the ban oneself. A more recent concept of " wanted dead or alive " is similar but implies that a trial is desired (namely if the wanted person is returned alive), whereas outlawry precludes a trial. An outlaw might be killed with impunity, and it was not only lawful but meritorious to kill a thief fleeing from justice—to do so was not murder . A man who slew

11676-526: The defendants thought they had already killed their victim when they threw him over a cliff and abandoned the "body". Thus, although the act actually causing death was performed when the defendants did not have the intention to kill, the conviction was confirmed. Concurrence is also known as simultaneity or contemporaneity. An offence of murder by a British subject "may be dealt with, inquired of, tried, determined, and punished" in England and Wales wherever in

11815-575: 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

11954-408: The effect of the attack on the mother, rather than due to any injury. In that case, Lord Mustill noted that the legal position of the unborn, and other pertinent rules related to transferred malice , were very strongly embedded in the structure of the law and had been considered relatively recently by the courts. The Lords concurred that a foetus, although protected by the law in a number of ways,

12093-438: The effect of this rule had been to create murder offences in two cases: when manslaughter occurs during the course of a crime it could in certain cases be automatically reclassified by law as murder; and that any deaths resulting from acts of a criminal during the crime could cause culpability as murder on the part of all his or her fellow criminals. The effect of this rule is partly retained despite abolition, since intent to kill

12232-406: 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,

12371-485: 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. While military organisations have existed as long as government itself,

12510-490: The foreseeability on the part of the accused that his act would create a risk ... All that it [sic] is needed, once causation is established, is an act creating a risk to anyone; and such a risk is obviously established in the case of any violent assault ... The unlawful and dangerous act of B changed the maternal environment of the foetus in such a way that when born the child died when she would otherwise have lived. The requirements of causation and death were thus satisfied, and

12649-402: The four attributes of "unlawful act" manslaughter were complete. Lord Hope drew attention to the parallel case of R v Mitchell where a blow aimed at one person caused another to suffer harm leading to later death, affirmed by the Court of Appeal as manslaughter, and summarized the legal position of the death of the unborn child: As the defendant intended to commit that act [stabbing], all

12788-870: 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

12927-463: The idea of a standing police force is a relatively modern concept. For example, Medieval England 's system of travelling criminal courts , or assizes , used show trials and public executions to instill communities with fear to maintain control. The first modern police were probably those in 17th-century Paris, in the court of Louis XIV , although the Paris Prefecture of Police claim they were

13066-524: 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

13205-428: 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

13344-546: The incident could not be considered the proximate cause of death. Advances in modern medicine and patient care, including stabilized states such as coma which can last more than a year before death, made this assumption no longer appropriate. The mens rea (Latin for "guilty mind") of murder is either an intention to kill (per the 2004 binding case of R v Matthews & Alleyne ) or an intention to cause grievous bodily harm ( R v Moloney , R v Hancock & Shankland , and R v Woollin ). In Moloney , Lord Bridge

13483-417: The ingredients necessary for mens rea in regard to the crime of manslaughter were established, irrespective of who was the ultimate victim of it. The fact that the child whom the mother was carrying at the time was born alive and then died as a result of the stabbing is all that was needed for the offence of manslaughter when actus reus for that crime was completed by the child's death. The question, once all

13622-531: The injury alleged to have caused the death was sustained more than three years before the death occurred, or the person has previously been convicted of an offence committed in circumstances alleged to be connected with the death, may only be instituted by or with the consent of the Attorney General . A count charging a single principal offender with murder will now be in the following form: STATEMENT OF OFFENCE. Murder. PARTICULARS OF OFFENCE. A.B., on

13761-415: The jury is not satisfied that the intent of any one defendant was to cause serious harm or to kill that participation will be negatived. In R v Gnango (2011), the Supreme Court controversially held under the doctrine of joint enterprise and transferred malice that D2 is guilty of murdering V if D1 and D2 voluntarily engage in fighting each other, each intending to kill or cause grievous bodily harm to

13900-523: 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. The main institutions of law in industrialised countries are independent courts , representative parliaments, an accountable executive,

14039-446: 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

14178-409: The law or those merely opposed to "law-and-order" notions of conformity and authority (such as the " outlaw country " music movement in the 1970s). 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 a matter of longstanding debate. It has been variously described as a science and as

14317-731: 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

14456-577: 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

14595-449: The legal basis for murder, manslaughter, transferred malice, and the position of an unborn child who dies before or after birth, and as a result of harm to the foetus, mother, or the natural processes of pregnancy. The primary ruling of the case, by Lord Mustill , noted that the foundation and delineation for several rules of law in theory and in historical terms was unsatisfactory, but that the rules themselves were very strongly embedded in

14734-426: 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

14873-472: 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

15012-510: 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

15151-669: 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

15290-505: 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

15429-538: 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

15568-478: The other and each foreseeing that the other has the reciprocal intention, and if D1 mistakenly kills V in the course of the fight. The requirement that death occur within a year and a day of any injury for a killing to amount to murder was abolished by the Law Reform (Year and a Day Rule) Act 1996 . Historically it had been considered that if a person survived more than that period after an incident, and died later,

15707-614: The other as being "illegal", notorious cases being the use of proscription in the civil wars of the Roman Republic . In later times there was the notable case of Napoleon Bonaparte whom the Congress of Vienna , on 13 March 1815, declared had "deprived himself of the protection of the law" . In modern times, the government of the First Spanish Republic , unable to reduce the Cantonal rebellion centered in Cartagena, Spain , declared

15846-411: The other elements are satisfied, is simply one of causation. The defendant must accept all the consequences of his act ... The death of the child was unintentional, but the nature and quality of the act which caused it was such that it was criminal and therefore punishable. Four years later, the case St George's Healthcare NHS Trust v S R v Collins and others, ex parte S [1998] 3 All ER considered

15985-564: 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

16124-483: 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

16263-648: The possibility of being declared an outlaw for derelictions of civil duty continued to exist in English law until the passing of the Civil Procedure Acts Repeal Act 1879 ( 42 & 43 Vict. c. 59) in 1879 and in Scots law until the late 1940s. Since then, failure to find the defendant and serve process is usually interpreted in favour of the plaintiff, and harsh penalties for mere nonappearance (merely presumed flight to escape justice) no longer apply. Outlawry also existed in other ancient legal codes, such as

16402-416: 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

16541-469: 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

16680-437: The same punishment. Among other forms of exile , Roman law included the penalty of aquae et ignis interdictio ("interdiction of water and fire"). Such people penalized were required to leave Roman territory and forfeit their property. If they returned, they were effectively outlaws; providing them the use of fire or water was illegal, and they could be killed at will without legal penalty. The interdiction of water and fire

16819-433: The sentence of capital punishment. It was, however, imposed on defendants who fled or evaded justice when sued for civil actions like debts or torts. The punishments for civil outlawry were harsh, including confiscation of chattels (movable property) left behind by the outlaw. In the civil context, outlawry became obsolete in civil procedure by reforms that no longer required summoned defendants to appear and plead. Still,

16958-402: 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

17097-454: 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

17236-636: The structure of the law and had been considered relatively recently. In particular, "the concept of general malice must be rejected as being long out of date". In 2004, the Law Commission published an initial report, Partial Defences to Murder . It concluded the law on murder was "a mess"; a full review was announced by the Home Office in October 2004. The terms of reference were published in July 2005, and in 2006

17375-614: 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,

17514-484: The willful killing of a foetus before birth, without maternal consent, in a medical context. It was held a trespass to the person that the hospital terminated the pregnancy involuntarily due to the mother being diagnosed with severe pre-eclampsia . The court held that an unborn child's need for medical assistance does not prevail over the mother's autonomy and she is entitled to refuse consent to treatment, whether her own life or that of her unborn child depends on it (see

17653-418: 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

17792-566: The world the killing took place and no matter what the nationality of the victim. Murder is an offence against the person for the purposes of section 3 of the Visiting Forces Act 1952 . Euthanasia involves taking the life of another person, generally for compassionate reasons. It is distinct from assisted suicide , in which one person takes actions that helps another person to voluntarily bring about his or her own death, and distinct from refusal of treatment . Both remain illegal in

17931-429: The world's first uniformed policemen. Max Weber famously argued that the state is that which controls the monopoly on the legitimate use of force . The military and police carry out enforcement at the request of the government or the courts. The term failed state refers to states that cannot implement or enforce policies; their police and military no longer control security and order and society moves into anarchy,

18070-413: Was a party who had defied the laws of the realm by such acts as ignoring a summons to court or fleeing instead of appearing to plead when charged with a crime . The earliest reference to outlawry in English legal texts appears in the 8th century. The term outlawry refers to the formal procedure of declaring someone an outlaw, i.e., putting him outside legal protection. In the common law of England ,

18209-452: Was abolished in 1938. Outlawry was, however, a living practice as of 1855: in 1841, William John Bankes , who had previously been an MP for several different constituencies between 1810 and 1835, was outlawed by due process of law for absenting himself from trial for homosexuality and died in 1855 in Venice as an outlaw. There was also a doctrine of civil outlawry. Civil outlawry did not carry

18348-405: Was accused of a misdemeanour , then he was guilty of a serious contempt of court which was itself a capital crime. In the context of criminal law , outlawry faded out, not so much by legal changes as by the greater population density of the country, which made it harder for wanted fugitives to evade capture, and by the adoption of international extradition pacts. It was obsolete when the offence

18487-432: Was clear that, for the defendant to have the mens rea of murder, there must be something more than mere foresight or knowledge that death or serious injury is a "natural" consequence of the current activities: there must be clear evidence of an intention. This intention is proved not only when the defendant's motive or purpose is to kill or cause grievous bodily harm (direct intent), but when death or grievous bodily harm

18626-467: 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

18765-490: 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

18904-461: 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

19043-481: Was reintroduced to British law by several Australian colonial governments in the late 19th century to deal with the menace of bushranging . The Felons Apprehension Act (1865 No 2a) of New South Wales provided that a judge could, upon proof of sufficiently notorious conduct, issue a special bench warrant requiring a person to submit themselves to police custody before a given date, or be declared an outlaw. An outlawed person could be apprehended "alive or dead" by any of

19182-449: Was that the schoolteacher Thomas Hockey was acting under parental authority in using corporal punishment (he was charged with murder but found guilty of manslaughter). Another defence in medical cases is that of double effect . As was established by Judge Devlin in the 1957 trial of Dr John Bodkin Adams , causing death through the administration of lethal drugs to a patient, if the intention

19321-631: Was traditionally imposed by the tribune of the plebs and is attested to have been in use during the First Punic War of the third century BC by Cato the Elder . It was later also applied by many other officials, such as the Senate , magistrates , and Julius Caesar as a general and provincial governor during the Gallic Wars . It fell out of use during the early Empire . In English common law , an outlaw

#964035