INTRODUCTION TO LAW


Law


I

INTRODUCTION


Law, body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behavior of its members. The nature and functions of law have varied throughout history. In modern societies, some authorized body such as a legislature or a court makes the law. It is backed by the coercive power of the state, which enforces the law by means of appropriate penalties or remedies.

Formal legal rules and actions are usually distinguished from other means of social control and guides for behavior such as mores, morality, public opinion, and custom or tradition. Of course, a lawmaker may respond to public opinion or other pressures, and a formal law may prohibit what is morally unacceptable.

Law serves a variety of functions. Laws against crimes, for example, help to maintain a peaceful, orderly, relatively stable society. Courts contribute to social stability by resolving disputes in a civilized fashion. Property and contract laws facilitate business activities and private planning. Laws limiting the powers of government help to provide some degree of freedom that would not otherwise be possible. Law has also been used as a mechanism for social change; for instance, at various times laws have been passed to inhibit social discrimination and to improve the quality of individual life in matters of health, education, and welfare.

Some experts believe the popular view of law overemphasizes its formal, coercive aspects. They point out that if a custom or norm is assured of judicial backing, it is, for practical purposes, law. On the other hand, a statute that is neither obeyed nor enforced is empty law. Social attitudes toward the formal law are a significant part of the law in process. The role of law in China and Japan, for example, is somewhat different from its role in Western nations. Respect for the processes of law is low, at least outside matters of business and industry. Tradition looms much larger in everyday life. Resort to legal resolution of a dispute is truly a last resort, with conciliation being the mechanism that is preferred for social control.

Law is not completely a matter of human enactment; it also includes natural law. The best-known version of this view, that God's law is supreme, has had considerable influence in the United States and other Western societies. The civil rights movement, for example, was at least partially inspired by the belief in natural law. Such a belief seems implicit in the view that law should serve to promote human dignity, as for instance by the enforcement of equal rights for all. Muslim societies also embrace a kind of natural law, which is closely linked to the religion of Islam.

II

DEVELOPMENT OF LAW


Court of Justinian I


This Byzantine mosaic shows the court of Emperor Justinian I. In the 6th century, Justinian organized the first comprehensive compilation, or written code, of Roman law. The compilation, which became known as the Justinian Code, influenced the development of the civil law system in many countries.



Law develops as society evolves. Historically, the simplest societies were tribal. The members of the tribe were bonded together initially by kinship and worship of the same gods. Even in the absence of courts and legislature there was law—a blend of custom, morality, religion, and magic. The visible authority was the ruler, or chief; the ultimate authorities were believed to be the gods whose will was revealed in the forces of nature and in the revelations of the tribal head or the priests. Wrongs against the tribe, such as sacrilege or breach of tribal custom, were met with group sanctions including ridicule and hostility, and, the tribe members thought, with the wrath of the gods. The gods were appeased in ritualistic ceremonies ending perhaps in sacrifice or expulsion of the wrongdoer. Wrongs against individuals, such as murder, theft, adultery, or failure to repay a debt, were avenged by the family of the victim, often in actions against the family of the wrongdoer. Revenge of this kind was based on tribal custom, a major component of early law.

Tribal society gradually evolved into territorial confederations. Governmental structures emerged, and modern law began to take shape. The most significant historical example is Roman law, which influenced most of the legal systems of the world. In the 8th century bc the law of Rome was still largely a blend of custom and interpretation by magistrates of the will of the gods. The magistrates later lost their legitimacy because of gross discrimination against the lower (plebeian) class. The threat of revolution led to one of the most significant developments in the history of law: the Twelve Tables of Rome, which were engraved on bronze tablets in the 5th century bc (see Twelve Tables, Law of the). They were largely a declaration of existing custom concerning such matters as property, payment of debts, and appropriate compensation or other remedies for damage to persons. The Twelve Tables serve as a historical basis for the widespread modern belief that fairness in law demands that it be in written form. These tables and their Roman successors, including the Justinian Code, led to civil-law codes that provide the main source of law in much of modern Europe, South America, and elsewhere. See Civil Law.

The common-law systems of England, and later of the U.S., developed in a different manner. Before the Norman Conquest (1066), England was a loose confederation of societies, the laws of which were largely tribal and local. The Anglo-Norman rulers created a system of centralized courts that operated under a single set of laws that superseded the rules laid down by earlier societies. This legal system, known as the common law of England, began with common customs, but over time it involved the courts in lawmaking that was responsive to changes in society. See Common Law.

Modern legislatures and administrative agencies produce a much greater quantity of formal law, but the judiciary remains very important because of the continued vitality of the common-law approach even in matters of constitutional and statutory interpretations. Increasingly in civil-law countries, the subtleties of judicial interpretation and the weight of judicial precedents are recognized as involving the courts in significant aspects of lawmaking.