Branches of LAW (Law Series - 4)

If you have a tree, it will have branches (unless you cut them ofcourse). Law is just like a tree. A look at sociological explanation is really helpful. It beautifully illustrates the process which culminates into law. It starts with the actions of Ego (individual), turns to an habit, then to folkways, mores, customs and finally laws. [click here for wiki says about this.]

But then it does not stop at that. It moves on to develop and grow into a full fledged system of its own. And this is where the tree analogy comes to play. It develops into a discipline with specialized fields and thus its branches. Another process of evolution and we have sub-sets and super-sub-sets and so we have super-specialized disciplines. And so has law witnessed the huge architectural build-up that it has gone too heavy and vast to know it full. So let us start with the ground basics

I hope I don't need to explain what law is or why law is. So let us start straight with its branches. The most prominent of them are; criminal law; commercial law; contractual law; property law; constitutional law; taxation (how could I miss that???) and tort law. Then there are the less prominent ones; armed-forces law; administrative law (generally seen as a part of constitutional law itself); cyber law; space law; intellectual property law; immigration law; child law; juvenile law; family law; disabilities law; racialism law; and what not ...

Many of these are specialized disciples already while some are toddlers, yet to find a proper space for themselves.

At this point I thought I would elaborate the areas I have enumerated above but then if would have been too boring to browse through (though I would have been even more bored writing it up). So I dropped the idea. Any ways, the thing is that this is just an area for specialization and super-specialization. Does not much has to do with a lay-man understanding of the law, for the principles and structures behind each significantly remain the same, except where the special needs and complexities dominate to make specific rules dealing with specific situations. For example, the concept lies writ large at the heart of family law that individuals are free in the decision of their life-partners. But the certain societies wonder that it would be in their better interests (I fail to see how) if only the heterosexuals are permitted to form a union.

So this is how law structures itself. At the centre lies a tree, marking the evolution of law from mother nature (and therefore the intrinsic and constant connection with society) which is the source of all principles and aspirations for growth and then we have specific branches, which deal with different areas of law; More complex the society, more specialized the law, like cyber law, space law etc.

But then this categorization into branches is artificial as in any given situation there can be a cross-section of various issues that may apply. They inter-mingle and apply as a host of problems (so you hire a lawyer) which are to be addressed simultaneously (so the lawyer makes a team of lawyers for the problem) and then convince the judge (both legally as well as extra-legally) that your side is the best one and justice (if at all it exists in this world) can only be served by ruling in your favour ...

Major legal systems of the world (Law Series - 3)

(Thanks wiki for such a well-researched diagram)
(click to enlarge)

I hope you have seen the movie 'Welcome to the jungle'. [If not, perhaps this trailer might help. See the part after 1.45 minutes]. It gives an amazing description of the rules that govern humans inhabiting the rain-forests. Not exactly, but yes, a fair description of tribal culture, where might is right and you got to have it in you, in order to survive. In early times, law used to be like that. It used to be governed by the ablest man's sword and whatever he said was the law. Thats the first legal system. Tribal laws. You might wonder whether it survives the scrutiny of modern times and advanced civilizations, but it still holds good. Be it Amazon's rain-forests or Andaman's tribal communities, these notions still continue. Perhaps an anthropologist might add more to that list.]

It is often said, common sense is not so common (so much so that I have even seen a book with that title, and ya, not read it). But such uncommon common sense is the common law. Confused? I will give you more reasons to be.

Ever met a reasonable man? Or a person whom you can call a perfect one ? [Hey, stop. I don't mean one perfect for a spouse] Perfect in the sense, one who would commit no mistakes, (not one who commits but is pardonable), one whose decision is perfect (not just for you but for all), one who knows everything and is wise, one who is strong but only to the extent an average man should be strong, one who is feeble but only to the extent an average man is feeble, one who is governed by human values but is not emotional, one who is smart but not smarter than an average man? Think you are really confused now by what I mean. But perhaps this is what I want.

I can quiet guess that your answer to the above is 'no'. Some might even to the extent of saying that there is no man on earth which fits the description. I quiet sympathize but sadly enough, there is one legal system on this planet which does not agree with you. It believes that such a man exists and exists in a big way. Such a big way that it is there at all times and at all places, one known as 'reasonable man'. This Mr. Reasonable has such a profound influence on this legal system that the entire system revolves around this Mr. Reasonable.

What would Mr. Reasonable do in this situation, what should have been the natural response of Mr. Reasonable, why should she/he not act like Mr. Reasonable in the situation? Does this sound familiar? Welcome to the 'common law system'. A system which believes the reasonable man is very common (and not so uncommon as per our understanding) and applies this test for all circumstances. All actions and inactions are judged from this reasonable man test to determine their compatibility with the law. This system is developed on the decision of the judges, which is known as 'common law'. The belief was that the judge had some divine connection with the Almighty that enabled him to lay down a rule (technically called 'precedent') which would be fit and apt for regulating human behaviour for all times to come, unless another divine logic comes to override the previous one. Now this has largely been taken over by legislature, which lays down the law and judge enunciates it. However, the judges continue to exercise this rule-laying down power and fill the gaps which the legislative law carries. Therefore, common law.

There is more to this though. The systems starts with law and then applies life-situations to it i.e. first comes the law and then whether the party to an incident acted in a manner consistent with the law laid down. This is the major reason which this system is stuffed with legal jargon, technical concepts (you already know one by now; the reasonable man, remember) and gives tremendous important and thrust to legal and logical reasoning (thought its really amazing that they do not collide most of the times) in solving life problems. [England, United States, India, Canada, Australia etc. are prominent countries following this common-law system.]

As opposed to this heavily-law biased system is another system where the factual aspects of the matter are more relevant rather than the technical enunciation of law; the 'civil law system'. It is easy to understand it as it is quiet the opposite of the civil law system. It starts with facts and then moulds the law to arrive at the correct decision. Here judge is not one wise man entrusted with a solemn duty to lay down a norm for social behaviour like in the common law system, but is in fact meant to resolve the dispute, termed as the 'inquisitorial' method of dispute resolution. The law here is a code, existing in advance and the judge is to resolve the dispute in accordance with the code. This is quiet distinct from the common law, where the judge generally adds to the existing body of law. [France, Germany, Denmark, Norway are some countries which follow this civil-law system]

Having read through the technical aspects and nuances of the these two major legal systems (I am sure you would be jittery and feeling heavy by now), I now take you to a simple and easily understood system. A legal system is dictated by religion and administered by religious priests. No wonder it is called 'Religious-law system' (though sometimes also termed as the 'Ecclesiastical System'. So what the religious texts, as interpreted by the clergy, say is the law that governs the people. Simple really, right? [Afghanistan, Iran, Saudi Arabia, Sudan are some countries which have adopted this legal system]

Then there remains just one more system to be understood; the 'customary system'. Though technically not a system in itself and just a principle of law (i.e. law develops from custom) it tends to be a system where habits and mannerisms of people force them to apply it as an obligation for all. This system is virtually a non-starter and not very prominent. Yet, wikipedia identifies atleast one country following this system.

Lastly, but not the least, don't be surprised to find a country the legal system which bears resemblance to more than one above. This is for the reason that countries keep experiencing and the judges tend to import concepts from other legal systems into their own. So we have various systems which reflect a culmination of the above principles. But in essence, they do tend to follow one system predominantly than the other.

Hope this was one interesting than the previous one (as I was told to do).

Why LAW? (Law Series - 2)

Situation 1: Mr. Giant approaches Mr. Cute and says 'hey dumbo, I don't like your face!!! I am going to reshape.' Gives a punch and blow on the eye. Laughs and leaves. Mr. Cute is left ailing.

Situation 2: Miss Yojyna plans to goes for shopping at Oxford Street. She takes a cab from Regent Street and asks the driver to drop her at the nearest bus stop. The driver says 'Madam, why are you taking the cab. Oxford Street is just around the corner, just walk.' But she insists. So he says, 'alright. I am gonna take you to Oxford Street but you have to pay double the charge of whatever comes on the machine.' She responds, 'alright. so be it'. The driver drops her at the bus stop and asks for double the amount, as promised by her. She replies 'you cheat, you liar, you thug!!! you harressed me and tempted me to get in your car so that you could sell me to a sex-shop. help, people help !!!' The cab driver sees people accumulating and so runs off.

Do these situations make you think? Is there something unfair going on in here? Is everything ok? Are the people crazy? Or is it just an everyday affair? Happens just around the corner everyday, right?

I will try to explore the answers to these while dealing with the issue, why law?

Though the question 'why law' is not as perplexing a question as to 'what is law' but the answer to this is essentially embedded in the determination of that other question. Thus the most approximate answer to this 'why' is that law is needed to regulate human behaviour. But another 'why' leads to the question, 'why do we need to regulate human behaviour?' and it is here that we need to appreciate the nuances of a social structure, that also leads us towards discovering the answer to the question 'why law'.

Defining human behaviour is, essentially, a prediction as to interactions which take place when two humans interact; do they act friendly, do they turn hostile, do they act as unknown, etc. The reason is essentially the xenophobic and self-preserving tendencies of humans, coupled with the fear-factor and self-interest motivations, which influence interactions. Therefore, there arises a need for an independent unbiased person/institution to define the specific parameter in which the interactions should take place. These parameters acts as the rules of bounded rationality in which the interactions should take place.

The rules (or 'law') conceive general and specific situations which are to be promoted or avoided and accordingly devise mechanisms influencing these interactions. To illustrate, the rules prohibit interactions between parties where there is an inequality of bargaining power (therefore the concept of undue influence and other 'vires vitiating consent' in the law of contracts). Also, the law gives a legal protection to those entities which are considered to be ignorant of their self interests (like doli incapax and similarly the concept of statutory rape in relation to minors, etc.). It is here relevant to point out that these rules vary across countries and regions, depending upon the social ethos and morality issues operating therein. For example, while India prescribes laws against the harmful practices of Sati and child-marriage, there may not be any need for these laws in European jurisdictions wherein such practices are unknown.

As regards the side of promotional factors, one illustration can be the promotion of research and development, intellectual outputs etc.; therefore the protection and right of exclusive exploitation to the harbingers of intellectual property. Similarly, the law rewards good behaviour and so the concept of probation.

Therefore law comes to define the environment in which the interaction should take place; the manner in which interaction should take place; the grounds for and effects of abuse; prohibitions and debarring of erring individuals; rewards for good behaviour; etc. Thus law is required to govern; govern the governed (individual or subjects) and govern the governing (person or institution). Thus these set of rules act as the paramount basis for governance, and this is how the legal system works. And therefore we have LAW.

Now let us come back to our two situations. It may be right in a few places that Mr. Cute was punched. But a majority of people will say that this was wrong on the part of Mr. Giant and he must be punished for that. But why should he be punished. Did he do anything wrong? Not until it is recognized that the conduct of Mr. Giant was unacceptable in a social system and there is a punishment prescribed for that. Doing that, is precisely what law is for. It recognizes and defines what is impermissible social behaviour and proscribes mechanism to ensure that such incident is not repeated.

Similarly, in the second situation, while it was wrong on the part of the cab-driver to ask double payment, it was similarly wrong on the part of Miss Yogjna to shout at him in an offensive and rude manner. Now it depends upon the social perspective in which we are in, to decide what law should prescribe for it. Should the driver be held to have done an acceptable act (and thus there be a law to prohibit that) or the lady to have done something obnoxious (and thus dealt with accordingly) or should both of them be taken to task for what they did. I would leave you with that, to define in your own terms as to what should have been the next step that law would have taken after the incident took place, of if you desire, what should the law say for such situations.



** [ For general interest, I may as well point out that these rules are subjective, subjective to the one laying down these rules (and therefore they vary). This is for the reason that societies, invariably, identify a chosen one (or chosen few) to lay down these rules. The selection process of this chosen group may again be laid down by habits or prevalent practices. This chosen group remains responsible for laying down these rules in a manner, as it is so expected from it, which is in the best interests of those to whom these rules apply. For example, in early England the King was the 'fountain-head of justice', next to God and was considered the chosen one to lay down the law. Now the system that works is termed as the 'rule of law' i.e. no one is above the law, the law-maker himself.

Thus, while there may be a reason behind the legal rules, which may as well be clearly evident from the rule itself (like a rule prohibiting corruption / bribery etc.), there may not be an identifiable reason behind the rule (like why a particular age is declared as the age at which an individual attains majority). These are questions mostly left unanswered and justified as 'legislative wisdom'. ] **

What is LAW? (Law Series - 1)

What is law? Good question actually. For it does not have one unequivocal answer. It fits in all these and other descriptions; it is a stream of thought, a literal depiction of bounded rationality, a societal instrument for regulating human behaviour, a means of social change, collective intelligence of a civilization, a code of best practices, etc. etc. etc.

The Dean of my Law University used to define law, for a lay-man, as 'codified common-sense'. I see no hiccups in accepting that definition but for the fact that it is just like a blind-men explaining an elephant. While the description is correct, it fails to exactitude the description of law covers all its contours.

Then there is another description that 'law is a system of rules'. I quiet agree with this statement except for the fact that certain dimensions of law do not exactly fit in this description. For example, major portions of international law are not rules but just sought-after practices, which may or may not be honoured. Nonetheless it is appropriate to go ahead with this understanding and explore the concepts further, given the fact that there would be exceptions to any definition.

Now once we have a system of rules, what does it do? what is it meant for? why have this system of rules? The answer to them seem to be historic as well as the outcome of human interactions with each other. A law-less world can be best described as a potion of Darwin's theory which relates to the 'survival of fittest'. Thus there would be a position of might is right. Thus to evolve a better social system (ofcourse the use of the term 'better' here is a relative term, depending on the needs of the majority of social cross-section the system is meant for) there are brought in 'rules' which regulate the ways in which human interactions takes place.

A lot of this is explained by the 'social contract theory' which builds it premises on a hypothesis that the people (in a 'state of nature' i.e. the social order prior to the legal system coming into place) agreed to limit their own rights and confer them on an individual/group of individuals/institution (depending on which version you chose i.e. of Hobbes, Locke or Rousseau) which they conceived as a better protector of their rights and liberties.

Thus the society accepted towards positioning itself in a system where the rules would flow either from top (in a 'Kingship' type or similar based system) or bottom (in a 'democracy' type or similar system) and everyone would be abide by them. Initially there was a system that even the rule-maker(/s) would abide by them except for certain special rules which applied to him(/them) specifically but with passage of them most of these rule-maker(/s) came to place themselves in a position where they only made the rules for others and were not required to abide by any. [Thus is explained the hue-and-cry for 'good-governance' norms to be applied to these rule-making institutions.]

But as things became, they stand as thus, there exists a rule-making institution, called the 'sovereign' (which may be a single individual) which is the originator of these rules, meant to be followed to whom they are addressed and these rules are collectively termed as 'Law'.

This simplistic understand of law, when exposed to the special needs and circumstances and the subject matter it regulates, assumes hybrid and diagrammatically-opposite dimensions and becomes quiet complex. However what remains the same is this underlying of regulating human behaviour. Thus becomes 'law' as an institution in itself, permeating all self and affecting all.

Law Series

As I had originally thought, having written a lot on random issues, I now move on to write on a series of legal issues.

Since I have noticed that it is often a complaint that law is drafted in a manner such technical and full of legal jargon that none other than the legal professionals are able to identify and understand the substance of enactments, which no doubt effect them day in an out. So I try to give my understanding of issues and ingredients in a non-technical language.

I have named these series of posts as 'Law Series' and as of now I have identified a few topics to deal upon. I will keep adding to this identified list and try to cover as many areas I can. As of now, this list stands as follows;

1. What is LAW?
2. Why LAW?
3. Major legal systems of the world
4. Branches of LAW
5. Makers of LAW
6. Administrators of LAW
7. Trend-setters of LAW
8. Executors of LAW
9. Natural Sciences and LAW
10. Social Sciences and LAW
1. Economics
2. Sociology
3. Psychology
4. Political Science
5. History

11. Legal Professionals
12. Jurisprudence
13. Schools of Legal Thought

Let us see how far and deep I am able to go in this.

[ :) ]