Customary laws

In many parts of the world unwritten local or tribal custom sets the standard of behavior and provides for conciliation and dispute settlement. Most of the African countries, for instance, have a formal constitutional and commercial law inspired by French, Belgian or British models but remit the relations between private individuals to the appropriate customary framework.

Part 4

Criminal Law

Crimes are wrongdoing s seen from the point of view of the society in which they occur: the convicted wrongdoer may be punished. Torts include the same wrongdoings seen from the point of view of their victim: the wrongdoer may be ordered to pay compensation. Sin s include the same wrongdoings seen from the point of view of a faith; they call for repentance and atonement. Thus all three systems agree in condemning the most common acts of wickedness - murder, rape, robbery, violence, theft and the like. Once such acts occur, however, the secular responses seem in practice weak. Relatively few crimes are solved, few criminals convicted. Almost never are they made to compensate their victim.

Nonetheless many societies attach great importance to a system of criminal justice: laws which define crimes and provide the sanctions; procedural rules for establishing guilt in a court; and a set of methods and places of punishment and rehabilitation. Furthermore the types of actions declared to be criminal are, in all major matters, much the same everywhere.

As with the area of the ordinary non-criminal private law, the system in the 'civil law' world has developed from two main sources: first the Napoleonic codes of penal procedure (1808) and penal law (1810), and then the German penal and procedural codes (1871, 1877). A key figure in the criminal procedure of many civil-law countries is the juge d'instruction who supervises the pre-trial stages. The use of a jury is uncommon save for very serious crimes, though Russia is introducing the system. On the other hand the first instance tribunal often comprises one judge and two lay persons, all of whom deliberate together and decide on guilt and sentence. Another common feature (at least in theory) is the presence of the victim as ' civil plaintiff ', so that the same court can convict the accused, assess the victim's injury or damage, and order the accused to pay compensation.

Countries of the 'common-law' world began from the English criminal law but, unlike England, now normally have a comprehensive and coherent penal code (the British parliament has never defined murder: this has been left to the courts). A typical feature of these 'common-law' systems is that, for all save relatively minor offences, the decision on guilt or innocence is taken by a jury of lay-persons selected for that case: this has a profound effect on the conduct of a trial and the presentation of evidence. Another feature is that the victim who seeks compensation must start another lawsuit before another court.

Whatever their origin, most legal systems agree on certain basic premises. First, that no one can be guilty of a crimeunless the offence is defined as such beforehand, and the conviction arrived at by a lawful procedure. Inherent in this is the requirement of clarity in criminal law, a prohibition against its retrospective effect, and certain notions of ' fair trial ' and the availability of legal representation. Second that no one can be prosecuted twice for the same thing. Third that deliberately criminal conduct can be punished although it did not succeed - it is a crime to attempt a crime, or to conspire with others to commit one.

The fourth common premise is harder to explain. The essential ingredients of a crime contain both a factual and a mental element. The first covers certain (not involuntary) human conduct in certain circumstances, and sometimes with certain consequences: for example stealing involves taking someone else's property; on a charge of homicide the prosecution must prove that the victim is dead. The second means that it must normally be shown that the accused deliberately or recklessly did the forbidden act. The important point here is that, as a general principle, mere carelessness (or stupidity) is not a crime calling for punishment, but at worst a tort calling for compensation. Thus if you make off with my raincoat, honestly thinking it yours and not even seeing the risk that it might not be, you are not a thief: you did not deliberately or recklessly intend to take someone else's property. Of course if my name is marked inside it then you may have been careless, in which case you may owe me compensation. But you are not a criminal: stealing is dishonesty and you were (though negligent) perfectly honest. To this general principle there are important exceptions: careless driving is an obvious example and, where death is caused by gross negligence there may some homicide charge less than one of murder. Furthermore in many systems a number of (relatively slight) offences may be committed without any mental culpability at all. The reasons given for this include the need to protect the public and the difficulty of proving any mental element. Examples include the use of unroadworthy vehicles on a public highway.

Most systems accept that criminal liability is not to be imputed to certain classes of people: the very young or persons under severe mental illness. Systems also recognize a number of exculpating or mitigating circumstances such as self-defense, provocation, suicide pact s and the like.

Part 5

Private Law

Private law is the name commonly given to that vast area dealing with the legal relations between persons. It covers matters of pure status (marriage, divorce, kinship and so on); matters involving assets of some sort (property, succession, contracts); and commercial activities in the wider sense. Its essential feature is that the participants are presumed to be juridically equals (unlike the public law structure where relations are hierarchical) so that one cannot give orders to another, unless so authorized under some previous contractual or family arrangement. Its essential technique is that much of it is not automatically binding (jus cogens in lawyers' language) but serves to cut down the cost of legal transactions by providing a set of patterns which citizens may use if they wish. For instance the intestacy rules operate only if a person dies without having made a will. The rules on sale, lease, loan, partnership and so on are there as models which can be adopted in full, or modified if the parties so desire.

In countries of the Civil Law group these three areas of status, assets, and business may be dealt with in separate codes of Family Law, Civil Law (using the word in a narrower sense) and Commercial Law. In the common-law world the basic system is laid down by case-law, although there are many modern statutes which often re-state and systematize the work of the judges.

Despite the many differences on the surface and in particular detailed rules, the overall structure of private law in both civil and common-law systems can be stated quite simply in a formula derived ultimately from the Roman jurists: private law deals with persons, property, obligations and liability.

Persons

Private law defines who counts as a person able to enter into legal relations and deals with their legal capacity (so as to protect the very young or the mentally ill). Since the abolition of slavery, all human beings count as persons. Furthermore, these natural persons may set up other 'artificial' legal person s such as associations, foundations, and - most important - business corporations.

Property

All these persons may own property and hold it for its own sake (house, clothes etc) or as a business or investment (office blocks, factories, shares, savings accounts). Only the socialist systems attempted to prevent this second function of property by forbidding private persons to own 'the means of production '. The property involved may be tangible, and is often divided for legal purposes into immovable and movable (or ' realty ' and ' personalty ' in the obscure jargon of the common law). It may also be intangible, such as debts in the hands of a creditor, stocks and shares, copyrights, patents and so on. If the owners have full legal capacity (i.e. are sane adults) they may normally deal with their property as they please, subject of course to rules of public policy, zoning regulations and the like. They can deal with their property during their lifetime or by will, although many systems ensure that some of the deceased's property goes to near relatives.

Obligations

Persons may incur obligationsvoluntarilyby entering into a contract - for instance to get a job, buy a house, borrow on the security of a mortgage, take out an insurance policy. They also - whether they like it or not - incur the obligation imposed by law (the law of tort) to compensate others for unjustified harm caused them deliberately or carelessly. Likewise imposed by law are the duties which stem from family relationships.

Liability

The structure of private law is sealed by the following rule, now almost universal: a person must answer with his or her property for performance of all obligations. So, if the worst comes to the worst, most of a debtor's assets can be taken by process of execution. Human beings can be made bankrupt, and corporations liquidated.

Sources:

Legal Information Institute of Cornell University Low School

Дата добавления: 2015-11-14