Law

== Legal institutions ==
{{quote box|bgcolor=#c6dbf7|width=22em|salign=left|quote=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.|source=Thomas Hobbes, ''Leviathan'', [http://oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-c.html#CHAPTERXVII XVII]}}

The main institutions of law in industrialised countries are independent [[courts]], representative parliaments, an accountable executive, the military and police, [[bureaucracy|bureaucratic]] organisation, the [[legal profession]] and [[civil society]] itself. John Locke, in his ''[[Two Treatises of Government]]'', and [[Charles de Secondat, Baron de Montesquieu|Baron de Montesquieu]] in ''[[The Spirit of the Laws]]'', advocated for a [[separation of powers]] between the political, legislature and executive bodies.<ref>[[Montesquieu]], ''The Spirit of Laws'', [http://www.constitution.org/cm/sol_11.htm#006 Book XI: Of the Laws Which Establish Political Liberty, with Regard to the Constitution, Chapters 6–7] {{Webarchive|url=https://web.archive.org/web/20070203190914/http://www.constitution.org/cm/sol_11.htm#006 |date=3 February 2007 }}</ref> Their principle was that no person should be able to usurp all powers of the [[State (polity)|state]], in contrast to the [[Absolute monarchy|absolutist]] theory of [[Thomas Hobbes]]' ''[[Leviathan (Hobbes book)|Leviathan]]''.<ref>Thomas Hobbes, ''Leviathan'', [https://web.archive.org/web/20021125191001/http://oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-c.html#CHAPTERXVII XVII]</ref> [[Sun Yat-sen]]'s [[Constitution of the Republic of China|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.<ref>{{cite journal |last1=Caldwell |first1=Ernest |title=Chinese Constitutionalism: Five-Power Constitution |journal=Max Planck Encyclopedia of Comparative Constitutional Law |date=2016 |url=https://ssrn.com/abstract=2828104 |access-date=8 January 2020 |archive-date=25 February 2022 |archive-url=https://web.archive.org/web/20220225080817/https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2828104 |url-status=live }}</ref>

[[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 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.

=== Judiciary ===
{{main|Judiciary}}
[[File:Israeli supreme court judges.jpg|thumb|left|Six judges of the [[Israel Supreme Court]] sitting at their [[Bench (law)|bench]] in 1953]]

A judiciary is a number of judges mediating disputes to determine outcome. Most countries have systems of appeal courts, with an [[Supreme court|apex court]] as the ultimate judicial authority. In the United States, this authority is the [[Supreme Court of the United States|Supreme Court]];<ref>{{cite web |title=A Brief Overview of the Supreme Court |url=https://www.supremecourt.gov/about/briefoverview.pdf |publisher=Supreme Court of the United States |access-date=10 November 2006 |archive-date=6 July 2017 |archive-url=https://web.archive.org/web/20170706180812/https://www.supremecourt.gov/about/briefoverview.pdf |url-status=dead}}</ref> in Australia, the [[High Court of Australia|High Court]]; in India, [[the Supreme Court of India]]; in the UK, the [[Supreme Court of the United Kingdom|Supreme Court]];<ref>{{cite web |url=https://www.supremecourt.uk/ |title=The Supreme Court of the United Kingdom |author=<!--Not stated--> |date= |website= |publisher= The Supreme Court|access-date=12 November 2023 |quote=}}</ref> in Germany, the ''[[Bundesverfassungsgericht]]''; and in France, the ''[[Cour de cassation (France)|Cour de Cassation]]''.<ref>{{cite web |title=Entscheidungen des Bundesverfassungsgerichts (Decisions of the Federal Constitutional Court) |publisher=[[Federal Constitutional Court of Germany|Bundesverfassungsgericht]] |language=de |url=http://www.bundesverfassungsgericht.de/entscheidungen.html |access-date=10 November 2006 |url-status=dead |archive-url=https://web.archive.org/web/20061121164330/http://www.bundesverfassungsgericht.de/entscheidungen.html |archive-date=21 November 2006 }}</ref><ref>{{cite web|title=Jurisprudence, publications, documentation|url=http://www.courdecassation.fr/jurisprudence_publications_documentation_2/|language=fr|publisher=[[Court of Cassation (France)|Cour de cassation]]|access-date=11 February 2007|archive-date=9 February 2007|archive-url=https://web.archive.org/web/20070209144055/http://www.courdecassation.fr/jurisprudence_publications_documentation_2/|url-status=live}}</ref> 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 the [[Council of Europe]] member states to bring cases relating to human rights issues before it.{{sfn|Goldhaber|2007|pp=1–2}}

<!-- Deleted image removed: [[File:Public hearing at the ICJ.jpg|thumb|left|The judges of the [[International Court of Justice]] in [[the Hague]].]] -->
Some countries allow their highest judicial authority to overrule legislation they determine to be [[constitutionality|unconstitutional]]. For example, in ''[[Brown v. Board of Education]]'', the United States Supreme Court nullified many state statutes that had established [[Racial segregation in the United States|racially segregated]] schools, finding such statutes to be incompatible with the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]] to the [[United States Constitution]].{{sfn|Patterson|2001}}

A judiciary is theoretically bound by the constitution, just as all other government bodies are. In most countries judges may only [[interpretivism (legal)|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 the ideal of [[parliamentary sovereignty]], whereby the unelected judiciary may not overturn law passed by a democratic legislature.{{sfn|Dicey|2005|pp=37–82}}

In [[communist state]]s, 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.{{efn|E.g., the court president is a political appointee (Jensen–Heller, ''Introduction'', 11–12). About the notion of "judicial independence" in China, see Findlay, ''Judiciary in the PRC'', 282–284}} In Muslim countries, courts often examine whether state laws adhere to the Sharia: the [[Supreme Constitutional Court of Egypt]] may invalidate such laws,{{sfn|Sherif|2005|p=158}} and in Iran the [[Guardian Council]] ensures the compatibility of the legislation with the "criteria of Islam".{{sfn|Sherif|2005|p=158}}{{sfn|Rasekh|2005|pp=115–116}}

=== Legislature ===
{{main|Legislature}}
[[File:Chamber of the House of Representatives of Japan.jpg|thumb|The Chamber of the [[House of Representatives (Japan)|House of Representatives]], the [[lower house]] in the [[National Diet]] of [[Japan]]]]

Prominent examples of legislatures are the [[Houses of Parliament]] in London, the [[United States Congress|Congress]] in Washington, D.C., the [[Bundestag]] in Berlin, the [[Duma]] in Moscow, the [[Parliament of Italy|Parlamento Italiano]] in Rome and the [[National Assembly of France|''Assemblée nationale'']] in Paris. By the principle of representative government people vote for politicians to carry out ''their'' wishes. Although countries like Israel, Greece, Sweden and China are [[unicameralism|unicameral]], most countries are [[bicameralism|bicameral]], meaning they have two separately appointed legislative houses.{{sfn|Riker|1992|p=101}}

In the 'lower house' politicians are elected to represent smaller [[constituency|constituencies]]. The 'upper house' is usually elected to represent states in a [[Federal republic|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 Lords|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 a house of review. This can minimise arbitrariness and injustice in governmental action.{{sfn|Riker|1992|p=101}}

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 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).{{efn|About "cabinet accountability" in both presidential and parliamentary systems, see Shugart–Haggard, ''Presidential Systems'', 67 etc.}}

=== Executive ===
{{main|Executive (government)}}
[[File:Dmitry Medvedev 2 April 2009-1.jpg|thumb|left|The [[G-20 major economies|G20]] meetings are composed of representatives of each country's executive branch.]]

The executive in a legal system serves as the centre of political [[authority]] of the [[State (polity)|State]]. In 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 [[Motion of no confidence|confidence]] of the legislature. Because popular elections appoint political parties to govern, the leader of a party can change in between elections.{{sfn|Haggard|Shugart|2001|p=71}}

The [[head of state]] is apart from the executive, and symbolically enacts laws and acts as representative of the nation. Examples include the [[President of Germany]] (appointed by [[Federal Convention (Germany)|members of federal and state legislatures]]), the [[Queen of the United Kingdom]] (an [[Hereditary monarchy|hereditary office]]), and the [[President of Austria]] (elected by popular vote). The other important model is the [[presidential system]], found in the [[President of the United States|United States]] and in [[President of Brazil|Brazil]]. In presidential systems, 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.{{sfn|Haggard|Shugart|2001|p=71}}<ref>Olson, ''The New Parliaments of Central and Eastern Europe'', 7</ref>

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, the executive often has the power to veto legislation. Most executives in both systems are responsible for [[Foreign policy|foreign relations]], the military and police, and the bureaucracy. [[Minister (government)|Ministers]] or other officials head a country's public offices, such as a [[Foreign minister|foreign ministry]] or [[Defence minister|defence ministry]]. The election of a different executive is therefore capable of revolutionising an entire country's approach to government.

=== Military and police ===
{{main|Police|Military}}
[[File:South african police may 2010.jpg|thumb|Officers of the [[South African Police Service]] in [[Johannesburg]], 2010]]

While military organisations have existed as long as government itself, the idea of a standing police force is a relatively modern concept. For example, [[Medieval England]]'s system of travelling [[Criminal law|criminal court]]s, or [[Assize Court|assizes]], used [[show trial]]s and public executions to instill communities with fear to maintain control.<ref>See, e.g. ''Tuberville v Savage'' (1669), 1 Mod. Rep. 3, 86 Eng. Rep. 684, where a knight said in a threatening tone to a layperson, "If it were not assize time, I would not take such language from you."</ref> The first modern police were probably those in 17th-century Paris, in the court of [[Louis XIV of France|Louis XIV]],<ref>{{cite encyclopedia |title=History of Police Forces |url=http://www.history.com/encyclopedia.do?articleId=219522 |encyclopedia=History.com Encyclopedia |access-date=10 December 2006 |url-status=dead |archive-url=https://web.archive.org/web/20061229014447/http://www.history.com/encyclopedia.do?articleId=219522 |archive-date=29 December 2006 }}</ref> although the Paris Prefecture of Police claim they were the world's first uniformed policemen.<ref>[{{cite web|title=Des Sergents de Ville et Gardiens de la Paix à la Police de Proximité : la Préfecture de Police au Service des Citoyens|language=fr|publisher=La Préfecture de Police de Paris|url=http://www.prefecture-police-paris.interieur.gouv.fr/documentation/bicentenaire/theme_expo4.htm|access-date=24 January 2007|archive-url=https://web.archive.org/web/20080506215949/http://www.prefecture-police-paris.interieur.gouv.fr/documentation/bicentenaire/theme_expo4.htm|archive-date=6 May 2008}}</ref>

[[Max Weber]] famously argued that the state is that which controls the [[monopoly on the legitimate use of force]].<ref>Weber, [[s:Politics as a Vocation|Politics as a Vocation]]</ref><ref>Weber, ''The Theory of Social and Economic Organisation'', 154</ref> 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, the absence of government.{{efn|In these cases sovereignty is eroded, and often warlords acquire excessive powers (Fukuyama, ''State-Building'', 166–167).}}

=== Bureaucracy ===
{{main|Bureaucracy}}
[[File:Yamen-sitzung.jpg|thumb|The [[Mandarin (bureaucrat)|mandarin]]s were powerful bureaucrats in imperial China (photograph shows a [[Qing dynasty]] official with [[mandarin square]] visible).]]
The etymology of ''bureaucracy'' derives from the French word for ''office'' (''bureau'') and the [[Ancient Greek]] for word ''power'' (''kratos'').<ref>{{cite web |url=http://www.etymonline.com/index.php?search=bureaucracy&searchmode=none |title=bureaucracy |access-date=2 September 2007 |work=Online Etymology Dictionary |archive-date=15 January 2009 |archive-url=https://web.archive.org/web/20090115180219/http://www.etymonline.com/index.php?search=bureaucracy&searchmode=none |url-status=live}}</ref>{{Better source needed|reason=etymonline is not reliable source by any stretch of the imagination ([[WP:NOTRS]]).|date=August 2023}} Like the military and police, a legal system's government servants and bodies that make up its bureaucracy carry out the directives of the executive. One of the earliest references to the concept was made by [[Friedrich Melchior, baron von Grimm|Baron de Grimm]], a German author who lived in France. In 1765, he wrote:
<blockquote>The real spirit of the laws in France is that bureaucracy of which the late Monsieur de Gournay used to complain so greatly; here the offices, clerks, secretaries, inspectors and ''intendants'' are not appointed to benefit the public interest, indeed the public interest appears to have been established so that offices might exist.{{sfn|Albrow|1970|p=16}}</blockquote>

Cynicism over "officialdom" is still common, and the workings of public servants is typically contrasted to [[private enterprise]] motivated by [[Maximization (economics)|profit]].<ref>Mises, ''Bureaucracy'', II, [https://www.mises.org/etexts/mises/bureaucracy/section2.asp Bureaucratic Management] {{Webarchive|url=https://web.archive.org/web/20140914004054/https://www.mises.org/etexts/mises/bureaucracy/section2.asp |date=14 September 2014 }}</ref> In fact private companies, especially large ones, also have bureaucracies.{{sfn|Kettl|2006|p=367}} Negative perceptions of "[[red tape]]" aside, public services such as schooling, health care, policing or public transport are considered a crucial state function making public bureaucratic action the locus of government power.{{sfn|Kettl|2006|p=367}}

Writing in the early 20th century, Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support.<ref>Weber, ''Economy and Society'', I, 393</ref> Weber wrote that the typical characteristics of modern bureaucracy are that officials define its mission, the scope of work is bound by rules, and management is composed of career experts who manage top down, communicating through writing and binding public servants' discretion with rules.{{sfn|Kettl|2006|p=371}}

=== Legal profession ===
{{main|Legal profession}}A corollary of the rule of law is the existence of a legal profession sufficiently autonomous to invoke the authority of the independent judiciary; the right to assistance of a [[barrister]] in a court proceeding emanates from this corollary—in England the function of barrister or advocate is distinguished from legal counselor.{{sfn|Hazard|Dondi|2004|p=1}} As the European Court of Human Rights has stated, the law should be adequately accessible to everyone and people should be able to foresee how the law affects them.<ref>''[[The Sunday Times v The United Kingdom]]'' [1979] [http://www.worldlii.org/eu/cases/ECHR/1979/1.html ECHR 1 at 49] {{Webarchive|url=https://web.archive.org/web/20060916131454/http://worldlii.org/eu/cases/ECHR/1979/1.html|date=16 September 2006}} Case no. 6538/74</ref>

In order to maintain professionalism, the [[practice of law]] is typically overseen by either a government or independent regulating body such as a [[bar association]], [[bar council]] or [[law society]]. Modern lawyers achieve distinct professional identity through specified legal procedures (e.g. successfully passing a qualifying examination), are required by law to have a special qualification (a legal education earning the student a [[Bachelor of Laws]], a [[Bachelor of Civil Law]], or a [[Juris Doctor]] degree. Higher academic degrees may also be pursued. Examples include a [[Master of Laws]], a [[Master of Legal Studies]], a [[Bar Professional Training Course]] or a [[Doctor of Laws]].), and are constituted in office by legal forms of appointment ([[admission to the bar|being admitted to the bar]]). There are few titles of respect to signify famous lawyers, such as [[Esquire]], to indicate barristers of greater dignity,<ref>{{cite web|title=British English: Esquire|url=http://www.collinsdictionary.com/dictionary/english/esquire?showCookiePolicy=true|access-date=23 September 2014|date=n.d.|publisher=Collins Dictionary|archive-url=https://web.archive.org/web/20141006092224/http://www.collinsdictionary.com/dictionary/english/esquire?showCookiePolicy=true|archive-date=6 October 2014|url-status=live}}</ref><ref>{{cite web|url=http://www.collinsdictionary.com/dictionary/american/esquire?showCookiePolicy=true|publisher=Collins Dictionary|title=American English: Esquire|access-date=23 September 2014|date=n.d.|archive-url=https://web.archive.org/web/20141006084621/http://www.collinsdictionary.com/dictionary/american/esquire?showCookiePolicy=true|archive-date=6 October 2014|url-status=live}}</ref> and [[Doctor of law]], to indicate a person who obtained a [[PhD]] in Law.

Many Muslim countries have developed similar rules about legal education and the legal profession, but some still allow lawyers with training in traditional Islamic law to practice law before personal status law courts.{{sfn|Ahmad|2009}} In China and other developing countries there are not sufficient professionally trained people to staff the existing judicial systems, and, accordingly, formal standards are more relaxed.{{sfn|Hazard|Dondi|2004|pp=22–23}}

Once accredited, a lawyer will often work in a [[law firm]], in a [[barristers' chambers|chambers]] as a sole practitioner, in a government post or in a private corporation as an internal [[counsel]]. In addition a lawyer may become a [[legal research]]er who provides on-demand legal research through a library, a commercial service or freelance work. Many people trained in law put their skills to use outside the legal field entirely.<ref name="Fine364">Fine, ''The Globalisation of Legal Education'', 364</ref>

Significant to the practice of law in the common law tradition is the legal research to determine the current state of the law. This usually entails exploring [[law report|case-law reports]], [[legal periodical]]s and legislation. Law practice also involves drafting documents such as court [[pleading]]s, persuasive [[brief (law)|briefs]], contracts, or [[will (law)|wills]] and trusts. Negotiation and [[dispute resolution]] skills (including [[Alternative dispute resolution|ADR]] techniques) are also important to legal practice, depending on the field.<ref name="Fine364" />

=== Civil society ===
{{main|Civil society}}
[[File:1963 march on washington.jpg|thumb|A march in [[Washington, D.C.]] during the American [[civil rights movement]] in 1963]]

The [[classical republicanism|Classical republican]] concept of "civil society" dates back to Hobbes and Locke.<ref>Warren, ''Civil Society'', 3–4</ref> Locke saw civil society as people who have "a common established law and judicature to appeal to, with authority to decide controversies between them."<ref>Locke, ''[[s:Two Treatises of Government/The Second Treatise of Government: An Essay Concerning the True Origin, Extent, and End of Civil Government|Second Treatise]]'', Chap. VII, Of Political or Civil_Society. Chapter 7, section 87</ref> German philosopher [[Georg Wilhelm Friedrich Hegel]] distinguished the "state" from "civil society" ({{Lang-de|bürgerliche Gesellschaft}}) in ''[[Elements of the Philosophy of Right]]''.<ref>Hegel, ''Elements of the Philosophy of Right'', 3, II, [http://www.marxists.org/reference/archive/hegel/works/pr/prcivils.htm 182] {{Webarchive|url=https://web.archive.org/web/20070401193900/http://www.marxists.org/reference/archive/hegel/works/pr/prcivils.htm |date=1 April 2007 }}</ref>{{sfn|Karkatsoulis|2004|pp=277–278}}

Hegel believed that [[civil society]] and the [[State (polity)|state]] were polar opposites, within the scheme of his dialectic theory of history. The modern dipole state–civil society was reproduced in the theories of [[Alexis de Tocqueville]] and [[Karl Marx]].<ref>(Pelczynski, ''The State and Civil Society'', 1–13; Warren, ''Civil Society'', 5–9)</ref><ref>{{cite journal|last=Zaleski|first=Pawel|title=Tocqueville on Civilian Society. A Romantic Vision of the Dichotomic Structure of Social Reality|journal=Archiv für Begriffsgeschichte|volume=50|year=2008}}</ref> In post-modern theory, civil society is necessarily a source of law, by being the basis from which people form opinions and lobby for what they believe law should be. As Australian barrister and author [[Geoffrey Robertson QC]] wrote of international law, "one of its primary modern sources is found in the responses of ordinary men and women, and of the non-governmental organizations which many of them support, to the human rights abuses they see on the television screen in their living rooms."<ref>Robertson, ''Crimes Against Humanity'', 98–99</ref>

[[Freedom of speech]], [[freedom of association]] and many other [[individual rights]] allow people to gather, discuss, criticise and hold to account their governments, from which the basis of a [[deliberative democracy]] is formed. The more people are involved with, concerned by and capable of changing how political power is exercised over their lives, the more acceptable and [[Legitimacy (political)|legitimate]] the law becomes to the people. The most familiar institutions of civil society include economic markets, profit-oriented firms, families, trade unions, hospitals, universities, schools, charities, [[cogers|debating clubs]], non-governmental organisations, neighbourhoods, churches, and religious associations. There is no clear legal definition of the civil society, and of the institutions it includes. Most of the institutions and bodies who try to give a list of institutions (such as the [[European Economic and Social Committee]]) exclude the political parties.{{sfn|Jakobs|2004|pp=5–6}}<ref>Kaldor–Anheier–Glasius, ''Global Civil Society'', ''[http://www.lse.ac.uk/Depts/global/Publications/Yearbooks/2003/2003Chapter1a.pdf passim] {{Webarchive|url=https://web.archive.org/web/20070817130457/http://www.lse.ac.uk/Depts/global/Publications/Yearbooks/2003/2003Chapter1a.pdf |date=17 August 2007 }}''</ref>{{sfn|Karkatsoulis|2004|pp=282–283}}