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Jurisdiction

Jurisdiction

In law, jurisdiction from the Latin jus, juris meaning "law" and dicere meaning "to speak", is the practical authority granted to a formally constituted body or to a person to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. As a topic, it draws its substance from Public International Law, Conflict of Laws, Constitutional Law and the powers of the executive and legislative branches of government to allocate resources to best serve the needs of each society.

Jurisdiction in the international dimension

Public international law provides a framework within which nations and states (in the political sense of the words) can come into being and relate to each other.

Jurisdiction as a political issue

A number of supranational organizations and bodies have been created which provide mechanisms whereby disputes between states may be avoided, discussed or resolved, e.g. through arbitration or mediation. When a country is recognised as de jure, this is an acknowledgement by the other de jure nations that the new country has sovereignty and the right to exist. This is a political system that moves slowly, gathering consensus wherever possible and the extent to which any state will co-operate or participate is always at the discretion of each sovereign state. By definition, if any state does agree to participate in any of the activities of the supranational bodies and to accept decisions that might be made in the ordinary course of their business, that state is giving up a little of its sovereign authority and thereby allocating a little power to these bodies. In so far as these bodies or nominated individuals may resolve disputes in a judicial or quasi-judicial fashion, or promote treaty obligations in the nature of laws, the power ceded to these bodies cumulatively represents each body's own jurisdiction. But no matter how powerful each body may appear to become, the extent to which any of the judgments may be enforced, or proposed treaties and conventions may become or remain effective within the territorial boundaries of each nation is a political matter under the sovereign control of the relevant representative government(s) which, in a democratic context, will have electorates to satisfy.

International versus municipal jurisdiction

The fact that international organizations, courts and tribunals have been created raises the difficult question of how to co-ordinate their activities with those of national courts. If the two sets of bodies do not have concurrent jurisdiction but, as in the case of the International Criminal Court (ICC), the relationship is expressly based on the principle of complementarity, i.e. the international court is subsidiary or complementary to national courts, the difficulty is avoided. But if the jurisdiction claimed is concurrent, or as in the case of International Criminal Tribunal for the former Yugoslavia (ICTY), the international tribunal is to prevail over national courts, the problems are more difficult to resolve politically. The concept of universal jurisdiction is fundamental to the operation of global organizations such as the United Nations and the International Court of Justice (ICJ), which jointly assert the benefit of maintaining legal entities with jurisdiction over a wide range of matters of significance to states (the ICJ should not be confused with the ICC and this version of "universal jurisdiction" is not the same as that enacted in the War Crimes Law (Belgium) which is an assertion of extraterritorial jurisdiction that will fail to gain implementation in any other state under the standard provisions of public policy). Under Article 34 Statute of the ICJ http://www.icj-cij.org/icjwww/ibasicdocuments/Basetext/istatute.htm only states may be parties in cases before the Court and, under Article 36, the jurisdiction comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. But, to invoke the jurisdiction in any given case, all the parties have to accept the prospective judgment as binding. This reduces the risk of wasting the Court's time. Despite the safeguards built into the constitutions of most of these organizations, courts and tribunals, the concept of universal jurisdiction is controversial among those states which prefer unilateral to multilateral solutions through the use of executive or military authority, sometimes described as realpolitik-based diplomacy. Within other international contexts, there are intergovernmental organizations such as the World Trade Organization (WTO) that have socially and economically significant dispute resolution functions but, again, even though their jurisdiction may be invoked to hear the cases, the power to enforce their decisions is at the will of the states affected, save that the WTO is permitted to allow retaliatory action by successful states against those states found to be in breach of international trade law. At a regional level, groups of states can create political and legal bodies with sometimes complicated patchworks of overlapping provisions detailing the jurisdictional relationships between the member states and providing for some degree of harmonization between their national legislative and judicial functions, e.g. the European Union and African Union both have the potential to become federated states although the political barriers to such unification in the face of entrenched nationalism will be very difficult to overcome. Each such group may form transnational institutions with declared legislative or judicial powers. For example, in Europe, the European Court of Justice has been given jurisdiction as the ultimate appellate court to the Member States on issues of European law. This jurisdiction is entrenched and its authority could only be denied by a Member State if that Member State asserts its sovereignty and withdraws from the Union.

The jurisdictional relationship between international and municipal laws

The standard treaties and conventions leave the issue of implementation to each state, i.e. there is no general rule in international law that treaties have direct effect in municipal law, but some states, by virtue of their membership of supranational bodies, allow the direct incorporation of rights or enact legislation to honor their international commitments. Hence, citizens in those states can invoke the jurisdiction of local courts to enforce rights granted under international law wherever there is incorporation. If there is no direct effect or legislation, there are two theories to justify the courts incorporating international into municipal law:
- Monism :This theory characterizes international and municipal law as a single legal system with municipal law subordinate to international law. Hence, in the Netherlands, all treaties and the orders of international organizations are effective without any action being required to convert international into municipal law. This has an interesting consequence because treaties that limit or extend the powers of the Dutch government are automatically considered a part of their constitutional law, e.g. the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights. In states adopting this theory, the local courts automatically accept jurisdiction to adjudicate on lawsuits relying on international law principles.
- Dualism :This theory regards international and municipal law as separate systems so that the municipal courts can only apply international law either when it has been incorporated into municipal law or when the courts incorporate international law on their own motion. In the United Kingdom, for example, a treaty is not effective until it has been incorporated at which time it becomes enforceable in the courts by any private citizen, where appropriate, even against the UK Government. Otherwise the courts have a discretion to apply international law where it does not conflict with statute or the common law. The constitutional principle of parliamentary supremacy permits the legislature to enact any law inconsistent with any international treaty obligations even though the government is a signatory to those treaties. :In the United States, the Supremacy Clause of the United States Constitution makes all treaties that have been ratified under the authority of the United States and customary international law, …the "Supreme Law of the Land" (U.S. Const.art. VI Cl. 2) and, sas such, the law of the land is binding on the federal government as well as on state and local governments. According to the U.S. Supreme Court, the treaty power authorizes Congress to legislate under the Necessary and Proper Clause in areas beyond those specifically conferred on Congress (Missouri v. Holland 252 U.S. 416 (1920)).

The jurisdiction of courts between and within states

This now concerns states in the technical legal sense of the word and the relationships both between courts in different states, and between courts within the same state.

Supranational

At a supranational level, countries have adopted a range of treaty and convention obligations to relate the right of individual litigants to invoke the jurisdiction of state courts and to enforce the judgments obtained. For example, the Member States of the EEC signed the Brussels Convention in 1968 and, subject to amendments as new states joined, it represents the default law for all twenty-five Member States of what is now termed the European Union on the relationships between the courts in the different countries. In addition, the Lugano Convention (1988) binds the European Union and the European Free Trade Area. With effect from 1 March 2002, all the Member States of the EU except Denmark accepted Council Regulation (EC) 44/2001, which makes major changes to the Brussels Convention and is directly effective in the Member States. In some legal areas, at least, the reciprocal enforcement of foreign judgments is now more straightforward. At a state level, the traditional rules still determine jurisdiction over persons who are not domiciled or habitually resident in the European Union or the Lugano area. There is a real and growing problem of forum shopping and in the reluctance of some states to adopt more positive Conflict of Laws rules. Although the Hague Conference and other international bodies have made consistently useful recommendations on jurisdictional matters, litigants with the encouragement of lawyers now more commonly operating on a contingent fee continue to exploit the system to their advantage, always seeking remedies in courts where the outcome is more likely to be favorable.

Federal

Many nations are subdivided into states and provinces (i.e. a subnational "state") in a federation (as can be found in Australia, Brazil, India, Mexico and the United States) and these subunits will exercise jurisdiction through the court systems as defined by the executives and legislatures operating within the whole. Sometimes when the areas of separate governmental entities overlap one another—for example, between a state and the federation to which it belongs—their jurisdiction is shared or concurrent jurisdiction. Otherwise one governmental entity will have exclusive jurisdiction over the shared area. When jurisdiction is concurrent, one governmental entity may have supreme jurisdiction over the other entity if their laws conflict. If the executive or legislative powers within the jurisdiction are not restricted or restricted only by a number of limited restrictions, these government branches have plenary power such as a national policing power. Otherwise an enabling act grants only limited or enumerated powers. The problem of forum shopping also applies as between federal and state courts, and it is for each system to adjust jurisdictional matters to achieve the fairest possible results.

State level

Within each state, it is for the government to determine the allocation of jurisdiction: #There must be physical distribution of courts and tribunals throughout the territory which should be divided into convenient functional divisions to provide an effective service to the local communities. Hence, it may be convenient for there to be an extensive network of smaller local courts having a criminal law jurisdiction so that neighborhoods can have a disposition system administered by those familiar with their locality and its needs (see criminal jurisdiction). Whereas more specialized civil and commercial courts need only be located in larger towns and major cities where there is a demand for the particular specialisms consistent with the economic costs of providing the facilities and personnel to staff them. Each court system lays down detailed rules for determining who may invoke the jurisdiction in each of the various divisions. In addition to the possibility that the plaintiff has a local domicile, nationality or habitual residence, these conditions may vary from minimum residence requirements for those more transiently present, that business has been conducted within the territory or that there is some other real connection between the plaintiff and/or the cause of action and the state in which the lawsuit has been filed. #The government may decide that individuals within the executive should have the power to make judicial or quasi-judicial decisions, and the extent to which the exercise of this jurisdiction should be subject to review by the courts. This has constitutional implications in that many states operate on the basis of the separation of powers which requires that each branch of government operates as a check on the potential abuse of power by the others. Within the formalized judicial structure, jurisdiction may also be granted to individuals for the provision of specialized functions (e.g. the role of special referees or those individuals of prestige commissioned to conduct inquiries into specific situations with the power to compel testimony). In parallel to the courts system, other tribunals and quasi-judicial bodies may also have a form of jurisdiction, e.g. for arbitration, mediation, etc within a broad framework of alternative dispute resolution. Under normal circumstances, the supervisory function of the courts will be built into the constitutive process for each tribunal or body, or the courts will allow their jurisdiction to be invoked, e.g. by way of remedies such as certiorari, to ensure that justice is seen to be done. However, some well-established bodies such as the Beth Din represent more interesting challenges. Such religious or culturally-based courts often have significant power within the relevant communities yet, in an increasingly multi-ethnic, multi-cultural world, the secular or culturally-different majority in each state cannot be seen to be too quick to interfere and impose its standards without appearing to engage in unequal treatment and discrimination (see the secular response to the get as an example).

Jurisdiction in the United States

The primary distinctions between areas of jurisdiction are codified at a national level. As a common law system, jurisdiction is conceptually divided between jurisdiction over the subject matter of a case and jurisdiction over the person of the litigants. (See personal jurisdiction.) Sometimes a court may exercise jurisdiction over property located within the perimeter of its powers without regard to personal jurisdiction over the litigants; this is called jurisdiction in rem. A court whose subject-matter jurisdiction is limited to certain types of controversies (for example, suits in admiralty or suits where the monetary amount sought is less than a specified sum) is sometimes referred to as a court of special jurisdiction or court of limited jurisdiction. A court whose subject-matter is not limited to certain types of controversy is referred to as a court of general jurisdiction. In the U.S. States, each state has courts of general jurisdiction; most states also have some courts of limited jurisdiction. Federal courts (those operated by the federal government are courts of limited jurisdiction. Federal jurisdiction is divided into federal question jurisdiction and diversity jurisdiction. The United States District Courts may hear only cases arising under federal law and treaties, cases involving ambassadors, admiralty cases, controversies between states or between a state and citizens of another state, lawsuits involving citizens of different states, and against foreign states and citizens. Certain courts, particularly the United States Supreme Court and most state supreme courts, have discretionary jurisdiction, meaning that they can choose which cases to hear from among all the cases presented on appeal. Such courts generally only choose to hear cases that would settle important and controversial points of law. Though these courts have discretion to deny cases they otherwise could adjudicate, no court has the discretion to hear a case that falls outside of its subject-matter jurisdiction.

External links

- [http://www.law.cornell.edu/topics/jurisdiction.html LII Law about... Jurisdiction]
- [http://www.cdi.org/news/law/gtmo-sct-decision.cfm Supreme Court Decision] on Guantanamo Bay jurisdiction Category:International law Category:Law

Law

:This article is about law in society. For other possible meanings, see law (disambiguation). Law (a loanword from Old Norse lag), in politics and jurisprudence, is a set of rules or norms of conduct which mandate, proscribe or permit specified relationships among people and organizations, provide methods for ensuring the impartial treatment of such people, and provide punishments of/for those who do not follow the established rules of conduct. Law is typically administered through a system of courts, in which judges hear disputes between parties and apply a set of rules in order to provide an outcome that is just and fair. The manner in which law is administered is known as a legal system, which typically has developed through tradition in each country. Legal practitioners, most often, must be professionally trained in the law before they are permitted to advocate for a party in a court of law, draft legal documents, or give legal advice.

Legal traditions

There are generally four broad legal traditions that are practiced in the world today.

Civil law

The Civilian system of law is a codified law that sets out a comprehensive system of rules that are applied and interpreted by judges. It is by and large the most commonly practiced system of law in the world, with almost 60 % of the world's population living in a country ruled on the civilian system. The most important difference to common law is that normally, only legislative enactments are considered to be legally binding, but not precedent cases. However, as a practical matter, courts normally follow their previous decisions. Furthermore, in some civil law systems (e.g. in Germany), the writings of legal scholars have considerable influence on the courts. In most jurisdictions the core areas of private law are codified in the form of a civil code, but in some, like Scotland it remains uncodified. The civil law system has its origins in Roman law, which was adopted by scholars and courts from the late middle ages onwards. Most modern systems go back to the 19th century codification movement. The civil codes of many, particularly Latin countries and former French and Spanish colonies closely trail the Code de Napoléon in some fashion. However, this is not true for most Central and Eastern European, Scandinavian and East Asian countries. Notably, the German BGB was developed from Roman law with reference to German legal tradition. The importance of the Code Napoléon should also not be overemphasized as it covers only the core areas of private law, while other codes and statutes govern fields such as corporate law, administrative law, tax law and constitutional law.

Common law

The Common law is an Anglo-Saxon legal tradition, based on unwritten laws developed through judicial decisions that create binding precedent. The common law system is currently in practice in Australia, Canada (excluding Quebec), United Kingdom, and the United States (excluding Louisiana). In addition to these countries several others have adapted the common law system into a mixed system. For example, India and Nigera operate largely on a common law system but incorporate a good deal of customary law and religious law.

Customary law

Customary law are systems of law that has evolved largely on their own within a given country and have been adapted to meet the needs of the particular culture. Note that customary law may also be relevant within jurisdictions following another legal tradition in fields or subfields of law where no legislative enactment exists. For example, in Austria, scholars of private law often claim that customary law continues to exist, whereas public law scholars dispute this claim. (In any case, it is hard to find any practically relevant examples.)

Religious law

Many countries base their system of law on religious tenants. The most dominant system of this form of law is Muslim law (or "Sharia") which is a codified law that is found within the Koran. These laws deal primarily with the personal rights and dispute resolution between individuals. It is used in some Middle Eastern nations; such as in the Iran and Saudi Arabia. On a smaller level there are still regions of the world that practice canon law, which is followed by Catholics and Anglicans, and a similar legal system is used by the Eastern Orthodox Church. The same can be said for Jewish law (halakha or halacha), which is followed by Orthodox and Conservative Jews, in substantially different forms.

Bodies of law

In the broadest sense, bodies of law can be subdivided on the basis of who the parties to an action are. It is frequent that practiced fields of law overlap into several of these bodies of law.

Private law

The area of private law in a legal system concerns law that oversees disputes between private individuals. This area is, to a large extent, the most comprehensive area of law, dealing with all non-criminal harm one person does to another.

Public law

The area of public law, in a general sense, is the law in a given legal system that concerns disputes between the government and private individuals residing within the country. The state can bring actions against people for criminal acts, as well as breach of regulatory laws. Equally, individuals can bring actions against the government for harm it has done. This includes grounds on the basis of a breach of regulations, legislate on matters beyond their competence, or violation of an individuals rights. These last two points are often protected under a countries’ constitution.

Procedural law

Procedural law concerns the areas of law that regulate how all actions are dealt with. This includes who can have access to the court system, how complaints are submitted, and what are the rights of the parties involved. Procedural law is often known as "adjective" law as it is the law that concern how other laws are to be applied. Typically, this is broadly covered by a government’s civil and criminal procedure rules. But equally this includes the law of evidence which determines what means are used to prove facts, as well as, the law regarding remedies.

International law

International law governs the relations between states, or between citizens of different states, or international organizations. Its two primary sources are customary law and treaties.

Philosophy of law

Philosophy of law is a branch of philosophy and jurisprudence which studies basic questions about law and legal systems, such as "what is the law?", "what are the criteria for legal validity?", "what is the relationship between law and morality?", and many other similar questions. In the western tradition there are several schools of thought on the philosophical basis of law. First, there is natural law, which attempts to describe law as an inherent quality in humans that is derived from natures. Second, there is the positivism which believes that law is a purely human-made construct that society uses to maintain social order. Third, there is legal realism which believes that law is an arbitrary set of rules that are largely established through the tastes and preferences of judges.

Anthropology of law

:See main discussion at Honour Law has an anthropological dimension. It has been recognized from Montesquieu to the present that law is shaped by the kind of society in which it is practised. One continuum into which various societies can be placed contrasts the "culture of law" with the "culture of honour". In order to have a culture of law, people must dwell in a society where a government exists whose authority is hard to evade and generally recognised as legitimate. People take their grievances before the government and its agents, who arbitrate disputes and enforce penalties. This behaviour is contrasted with the culture of honour, where respect for persons and groups stems from fear of the revenge they may exact if their person, property, or prerogatives are not respected. Cultures of law must be maintained. They can be eroded by declining respect for the law, achieved either by weak government unable to wield its authority, or by burdensome restrictions that attempt to forbid behaviour prevalent in the culture or in some subculture of the society. When a culture of law declines, there is a possibility that an culture of honor will arise in its place.
History

Practice of law
Practice of law is typically overseen by either a government organization or independent regulating body such as a bar association or barrister society. To practice law – i.e. appear in front of a judge on behalf of someone, draft legal documents, etc. – the practitioner must be certified by the regulating body. This usually entails a two or three year program at a university’s faculty of law or a law school, followed by an entrance examination (eg. bar admissions). Once accredited, a legal practitioners will often work in law firm, as well as in government, a private corporation, or even work as sole practitioner. A significant component to the practice of law in the common law tradition involves legal research in order to determine the current state of the law. This usually entails exploring case reporters, legal periodicals, and legislation.
See also

- Law topics overview
- List of areas of law
- List of legal topics
- List of legal terms
- List of jurists
- List of legal abbreviations
- List of case law lists
- List of law firms
Further reading

- Cheyenne Way: Conflict & Case Law in Primitive Jurisprudence, Karl N. Llewellyn and E. Adamson Hoebel, University of Oklahoma Press, 1983, trade paperback, 374 pages, ISBN 0806118555
- The Bilingual LSP Dictionary. Principles and Practice for Legal language, Sandro Nielsen, Gunter Narr Verlag 1994.
- [http://browse.addall.com/Browse/Author/2088479-1 Other books by Karl N. Llewellyn]
- David, René, and John E. C. Brierley. Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law. 3d ed. London: Stevens, 1985 (ISBN 0420473408).
External links

- [http://www.legalmatch.com LegalMatch] Legal Resource
- [http://ausicl.com The Australian Institute of Comparative Legal Systems]
- [http://www.lpig.org Law and Policy Institutions]
- [http://www.llbee.com/news.php?p=news Laws External Education- Legal News By Subject]
- [http://www.4lawschool.com 4LawSchool- Legal Reference]
- [http://ww3.definitions-legal.com:8567/ Law, Legal Definitions & Reference]
- [http://www.ericdigests.org/1996-3/law.htm Essentials of Law-Related Education. ERIC Digest.]
- [http://www.law.cornell.edu LII - Topical overviews, US Supreme Court decisions, US Code (Acts of Congress)]
- [http://www.worldlii.org WorldLII - The World Legal Information Institute]
- [http://www.lawmoose.com LawMoose Legal Reference Library]
- [http://legallinks.jenkinslaw.org Legal Research Links]
- [http://www.findlaw.com FindLaw]
- [http://ausicl.com The Australian Institute of Comparative Legal Systems]
- [http://www.nolo.com/glossary.cfm Everybody's Legal Glossary] - From Nolo
- [http://www.alllaw.com/ AllLaw]
- [http://legal.wikicities.com/ WikiCities Legal Site]
- Stanford Encyclopedia of Philosophy:
- [http://plato.stanford.edu/entries/law-ideology/ Law and Ideology]
- [http://plato.stanford.edu/entries/law-language/ Law and Language]
- [http://en.jurispedia.org/ The shared law] in Jurispedia
- [http://www.avocatura.com Romanian Law]
- [http://www.thedailylaw.com Daily Law news]
- [http://members.fortunecity.com/victorcauchi/lex/lexindex.htm Laws of Malta] Chapter summaries and a general Glossary of definitions.
- [http://LawyerIntl.com LawyerIntl.com] Legal Resource and Law Dictionary
- [http://LawGuru.com LawGuru.com] Legal Portal
- [http://forumprawne.org Prawo i porady prawne] - web discussion board about Polish law Category:Core issues in ethics ja:法 (法学) simple:Law th:กฎหมาย

Latin

Latin is an ancient Indo-European language originally spoken in the region around Rome called Latium. It gained great importance as the formal language of the Roman Empire. All Romance languages, those being most notably Spanish, French, Portuguese, Italian, and Romanian, are descended from Latin, and many words based on Latin are found in other modern languages such as English. The Latin alphabet, derived from the Greek, remains the most widely-used alphabet in the world. It is said that 80 percent of scholarly English words are derived from Latin (in a large number of cases by way of French). Moreover, in the Western world, Latin was a lingua franca, the learned language for scientific and political affairs, for more than a thousand years, being eventually replaced by French in the 18th century and English in the late 19th. Ecclesiastical Latin remains the formal language of the Roman Catholic Church to this day, and thus the official national language of the Vatican. The Church used Latin as its primary liturgical language until the Second Vatican Council in the 1960s. Latin is also still used (drawing heavily on Greek roots) to furnish the names used in the scientific classification of living things. The modern study of Latin, along with Greek, is known as Classics.

Main features

Latin is a synthetic inflectional language: affixes (which usually encode more than one grammatical category) are attached to fixed stems to express gender, number, and case in adjectives, nouns, and pronouns, which is called declension; and person, number, tense, voice, mood, and aspect in verbs, which is called conjugation. There are five declensions (declinationes) of nouns and four conjugations of verbs. There are six noun cases: #nominative (used as the subject of the verb or the predicate nominative), #genitive (used to indicate relation or possession, often represented by the English of or the addition of s to a noun), #dative (used of the indirect object of the verb, often represented by the English to or for), #accusative (used of the direct object of the verb, or object of the preposition in some cases), #ablative (separation, source, cause, or instrument, often represented by the English by, with, from), #vocative (used of the person or thing being addressed). In addition, some nouns have a locative case used to express location (otherwise expressed by the ablative with a preposition such as in), but this survival from Proto-Indo-European is found only in the names of lakes, cities, towns, small islands, and a few other words related to locations, such as "house", "ground", and "countryside". Latin itself, being a very old language, is far closer to Proto-Indo-European than are most modern Western European languages; it has, in fact, about the same relationship with PIE as modern Italian or French has to Latin. There are six general tenses in Latin (technically they are tense/aspect/mood complexes). The indicative mood can be used with all of them. The subjunctive mood, however, has only present, imperfect, perfect, and pluperfect tenses. These tenses in the subjunctive mood do not completely correlate in meaning to the tenses in the indicative. The following examples are of the first conjugation verb "laudare" ("to praise") in the indicative mood and the active voice:
Primary sequence tenses
# present (laudo, "I praise") # imperfect (laudabam, "I was praising") # future (laudabo, "I shall praise," "I will praise")
Secondary sequence tenses
# perfect (laudavi, "I praised", "I have praised") # pluperfect (laudaveram, "I had praised") # future perfect (laudavero, "I shall have praised," "I will have praised") The future perfect tense can also imply a normal future idea (like in "When I will have run...") and so may also sometimes be included in the primary sequence.
Latin and Romance
After the collapse of the Roman Empire, Latin evolved into the various Romance languages. These were for many centuries only spoken languages, Latin still being used for writing. For example, Latin was the official language of Portugal until 1296 when it was replaced by Portuguese. The Romance languages evolved from Vulgar Latin, the spoken language of common usage, which in turn evolved from an older speech which also produced the formal classical standard. Latin and Romance differ (for example) in that Romance had distinctive stress, whereas Latin had distinctive length of vowels. In Italian and Sardo logudorese, there is distinctive length of consonants and stress, in Spanish only distinctive stress, and in French even stress is no longer distinctive. Another major distinction between Romance and Latin is that all Romance languages, excluding Romanian, have lost their case endings in most words except for some pronouns. Romanian retains a direct case (nominative/accusative), an indirect case (dative/genitive), and vocative. In Italy, Latin is still compulsory in secondary schools as Liceo Classico and Liceo Scientifico which are usually attended by people who aim to the highest level of education. In Liceo Classico Ancient Greek is a compulsory subject.
Latin and English
See Latin influence in English for a more complete exposition. English grammar is independent of Latin grammar, though prescriptive grammarians in English have been heavily influenced by Latin. Attempts to make English grammar follow Latin rules — such as the prohibition against the split infinitive — have not worked successfully in regular usage. However, as many as half the words in English were derived from Latin, including many words of Greek origin first adopted by the Romans, not to mention the thousands of French, hundreds of Spanish, Portuguese and Italian words of Latin origin that have also enriched English. During the 16th and on through the 18th century English writers created huge numbers of new words from Latin and Greek roots. These words were dubbed "inkhorn" or "inkpot" words (as if they had spilled from a pot of ink). Many of these words were used once by the author and then forgotten, but some remain. Imbibe, extrapolate, dormant and inebriation are all inkhorn terms carved from Latin words. In fact, the word etymology is derived from the Greek word etymologia, meaning "true sense of the word." Latin was once taught in many of the schools in Britain with academic leanings - perhaps 25% of the total [http://www.channel4.com/history/microsites/T/teachem2/thennow/]. However, the requirement for it was gradually abandoned in the professions such as the law and medicine, and then, from around the late 1960s, for admission to university. After the introduction of the Modern Language GCSE in the 1980s, it was gradually replaced by other languages, although it is now being taught by more schools along with other classical languages.
Latin education
The linguistic element of Latin courses offered in high schools or secondary schools, and in universities, is primarily geared toward an ability to translate Latin texts into modern languages, rather than using it in oral communication. As such, the skill of reading is heavily emphasized, whereas speaking and listening skills are barely touched upon. However, there is a growing movement, sometimes known as the Living Latin movement, whose supporters believe that Latin can, or should, be taught in the same way that modern "living" languages are taught, that is, as a means of both spoken and written communication. One of the most interesting aspects of such an approach is that it assists speculative insight into how many of the ancient authors spoke and incorporated sounds of the language stylistically; without understanding how the language is meant to be heard it is very difficult to identify patterns in Latin poetry. Institutions offering Living Latin instruction include the Vatican and the University of Kentucky. In Britain the Classical Association encourages this approach, and there has been something of a vogue for books describing the adventures of a mouse called Minimus. In the United States there is a thriving competitive organization for high school Latin students, the National Junior Classical League (the second-largest youth organization in the world after the Boy Scouts), backed up by the Senior Classical League for college students. Many would-be international auxiliary languages have been heavily influenced by Latin, and the moderately successful Interlingua considers itself to be the modernized and simplified version of the language (le latino moderne international e simplificate). Latin translations of modern literature such as Paddington Bear, Winnie the Pooh, Harry Potter and the Philosopher's Stone, Le Petit Prince, Max und Moritz, and The Cat in the Hat have also helped boost interest in the language.
See also

About the Latin language

- Latin grammar
- Latin spelling and pronunciation
- Latin declension
- Latin conjugation
- Latin alphabet
- List of Latin words with English derivatives
- Latin verbs with English derivatives
- Latin nouns with English derivatives
- ablative absolute
- Word order in Latin
About the Latin literary heritage

- Latin literature
- Romance languages
- Loeb Classical Library
- List of Latin phrases
- List of Latin proverbs
- Brocard
- List of Latin and Greek words commonly used in systematic names
- List of Latin place names in Europe
- Carmen Possum
Other related topics

- Roman Empire
- Internationalism
References

- Bennett, Charles E. Latin Grammar (Allyn and Bacon, Chicago, 1908)
- N. Vincent: "Latin", in The Romance Languages, M. Harris and N. Vincent, eds., (Oxford Univ. Press. 1990), ISBN 0195208293
- Waquet, Françoise, Latin, or the Empire of a Sign: From the Sixteenth to the Twentieth Centuries (Verso, 2003) ISBN 1859844022; translated from the French by John Howe.
- Wheelock, Frederic. Latin: An Introduction (Collins, 6th ed., 2005) ISBN 0060784237
External links

- [http://www.jambell.com/latin.html Latin Phrases for after dinner conversation (Thanks to Elaine Poole)]
- [http://www.ethnologue.com/show_language.asp?code=lat Ethnologue report for Latin]
- [http://forumromanum.org/literature/index.html Corpus Scriptorum Latinorum] is a comprehensive webography of Latin texts and their translations.
- [http://www.perseus.tufts.edu/ The Perseus Project] has many useful pages for the study of classical languages and literatures, including [http://www.perseus.tufts.edu/cgi-bin/resolveform?lang=Latin an interactive Latin dictionary].
- [http://lysy2.archives.nd.edu/cgi-bin/words.exe words by William whitaker] is a dictionary program online capable of looking up various word forms.
- [http://retiarius.org/ Retiarius.Org] includes a Latin text search engine.
- [http://www.nd.edu/~archives/latgramm.htm Latin-English dictionary and Latin grammar from U of Notre Dame]
- [http://latin-language.co.uk/ Latin language] History of Latin language, Latin texts with English translation and a collection of dictionaries.
- [http://augustinus.eresmas.net/scl/ Societas Circulorum Latinorum] gathers together Latin Circles all over the world.
- [http://www.learnlatin.tk LearnLatin.tk] - Free online course in Latin
- [http://www.latintests.net/ LatinTests.net] - Lets Latin learners test their grammar and vocabulary with self-checking quizzes.
- [http://thelatinlibrary.com/ The Latin Library] contains many Latin etexts
- [http://www.textkit.com/ Textkit] has Latin textbooks and etexts.
- [http://www.websters-online-dictionary.org/definition/Latin-english/ Latin–English Dictionary]: from Webster's Rosetta Edition.
- [http://www.language-reference.com/ Language reference] Cross-foreign-language lexicon powered by its own search engine. All cross combinations between Latin and French, German, Italian, Spanish.
- [http://comp.uark.edu/~mreynold/rhetor.html Rhetor by Gabriel Harvey] was originally published in 1577 and never again reprinted.
- [http://freewebs.com/omniamundamundis omniamundamundis] Latin hypertexts from fourteen ancient Roman authors.
- [http://www.saltspring.com/capewest/pron.htm Pronunciation of Biological Latin, Including Taxonomic Names of Plants and Animals]
- [http://www.yleradio1.fi/nuntii Nuntii Latini (News in Latin)], written and spoken (RealAudio) news in latin. Weekly review of world news in Classical Latin, the only international broadcast of its kind in the world, produced by YLE, the Finnish Broadcasting Company.
- [http://www.tranexp.com:2000/InterTran?url=http%3A%2F%2F&type=text&text=Replace%20Me&from=eng&to=ltt InterTran Latin], Translate from Latin to ENGLISH or vice versa.
- [http://www.latinvulgate.com Latin Vulgate] The Latin and English of the Old & New Testaments in parallel, along with the Complete Sayings of Jesus in parallel Latin and English. Category:Classical languages Category:Ancient languages Category:Fusional languages Category:Languages of Italy Category:Languages of Vatican City als:Latein zh-min-nan:Latin-gí ko:라틴어 ja:ラテン語 simple:Latin language th:ภาษาละติน

Justice

of Justice as woman with sword and with book - statue at court building.]] :For other uses, see Justice (disambiguation). Justice is a concept involving the fair, moral, and impartial treatment of all persons —often seen as the continued effort to do what is right. Justice is a particularly foundational concept within most systems of "law," and draws highly upon established and well-regarded social traditions and values. From the perspective of pragmatism, it is the name for a fair result. In most cases what one regards as "right" is determined by consulting established and agreeable principles, employing logic, or, in certain systems, by consulting a majority. In contexts where religion is a dominant, the pursuit of justice may be aided by deferring to religious texts and even spiritual guidance. If a person lives under a certain set law in a country, concepts of "justice" are often simply deferential to the existing law —the issuing of punitive reprimands for violations may be referred to as "serving justice." Classically, justice was the ability to recognize one's debts and pay them. It was a virtue that encompassed an unwillingness to lie or steal. It was the basis for the code duello. In this view, justice is the opposite of the vice of venality. In jurisprudence, justice is the obligation that the legal system has toward the individual citizen and the society as a whole. Justice (in both senses) is part of the debate regarding moral relativism and moral objectivism: Is there an "objective standard" of justice, under which all actions should be judged, or is it acceptable for justice to have different meanings in different societies? Some cultures, for instance, see punishments such as the death penalty as being appropriate, while others decry such acts as crimes against humanity. In some cases, justice is not equated with laws. For instance, laws that once supported slavery are now considered unjust laws such as the Fugitive Slave Law of 1850 in the United States. Also, many laws of illegitimate governments are considered unjust. Further, the social justice movement questions the morality of laws that protect property rights without adequate protection of the poor, especially those laws governing international trade.

External links

- Stanford Encyclopedia of Philosophy:
- [http://plato.stanford.edu/entries/economic-justice/ Economic Justice]
- [http://www.actfortheearth.org ACT for the Earth] peace, ecology, and human rights Category:Justice ja:正義

Public international law

International law, is the body of law that "regulates the activities of entities possessing international personality". Traditionally, that meant the conduct and relationships of states. However, it is now well established that international law also concerns the structure and conduct of international organizations, and, to a degree, that of multinational corporations and individuals. As Rosalyn Higgins put it, international law is a normative system "harnessed to the achievement of common values - values that speak to us all, whether we are rich or poor, black or white, of any religion or none, or come from countries that are industrialised or developing". The necessity for international law arises from the need to ensure a process that regulates competing demands and establishes the framework for predictable and agreed community behaviour. The term "public international law" is occasionally used as a synonym to distinguish international law from "private international law". The latter regulates the relations between persons or entities in different states and is in fact not international law at all (a better term which has been suggested for private international law is "conflict of laws").

The scope of international law

International law establishes the framework and the criteria for identifying states as the principal actors in the international legal system. As the existence of a state presupposes control and jurisdiction over territory, international law deals with the acquisition of territory, state immunity and the legal responsibility of states in their conduct with each other. The law is similarly concerned with the treatment of individuals within state boundaries. There is thus a comprehensive regime dealing with group rights, the treatment of aliens, the rights of refugees, international crimes, nationality problems and human rights generally. It further includes the important functions of the maintenance of international peace and security, arms control, the pacific settlement of disputes and the regulation of the use of force in international relations. Even when the law is not able to stop the outbreak of war, it has developed principles to govern the conduct of hostilities and the treatment of prisoners. International law is also used to govern issues relating to the global environment, the global commons such as international waters and outer space, global communications, and world trade. Whilst municipal law is hierarchical or vertical, with the legislature enacting binding legislation, international law is horizontal, with all states being sovereign and theoretically equal. Because of this, the value and authority of international law is dependent upon the voluntary participation of states in its formulation, observance, and enforcement. Although there may be exceptions, most states enter into legal commitments to other states out of enlightened self-interest rather than adherence to a body of law that is higher than their own. As D. W. Greig notes, "international law cannot exist in isolation from the political factors operating in the sphere of international relations". Where there are breaches of the law, international law has no established compulsory judicial system for the settlement of disputes or coercive penal system. That is not to say that there are no judicial or quasi-judicial tribunals in international law. The formation of the United Nations, for example, created a means for the world community to enforce international law upon members that violate its charter. Traditionally, states were the sole subjects of international law. With the proliferation of international organizations over the last century, they have in some cases been recognized as relevant parties as well. Recent interpretations of international human rights law, international humanitarian law, and international trade law (e.g. NAFTA Chapter 11 actions) have been inclusive of corporations, and even individuals.

Fundamental conflicts over international law

The 17th, 18th and 19th centuries saw the growth of the concept of a "nation-state", which comprised nations controlled by a centralized system of government. The concept of nationalism became increasingly important as people began to see themselves as citizens of a particular nation with a distinct national identity. Until the beginning of the 20th century, relations between nation-states were dictated by Treaty, unenforceable agreements to behave in a certain way towards another state. Many people now view the nation-state as the primary unit of international affairs. States may choose to voluntarily enter into commitments under international law, but they will often follow their own counsel when it comes to interpretation of their commitments. As the 20th century progressed, a number of violent armed conflicts, including WWI and WWII, exposed the weaknesses of a voluntary system of international treaties. In an attempt to create a stronger system of laws to prevent future conflicts, a vehicle for the application of international law was found in the creation of the United Nations, an international law making body, and new international criminal laws were applied at the Nuremberg trials. Over the past fifty years, more and more international laws and law making bodies have been created. Many people feel that these modern developments endanger nation states by taking power away from state governments and ceeding it to international bodies such as the U.N. and the World Bank. Some scholars and political leaders have recently argued that international law has evolved to a point where it exists separately from the mere consent of states. There is a growing trend toward judging a state's domestic actions in light of international law and standards (see world government for trends and movements leading in this direction). A number of states, notably including the United States vehemently oppose this interpretation, maintaining that sovereignty is the only true international "law" and that states have free reign over their own affairs. Similarly, a number of scholars now discern a legislative and judicial process to international law that parallels such processes within domestic law. Opponents to this point of view maintain that states only commit to international law with express consent and have the right to make their own interpretations of its meaning; and that international courts only function with the consent of states. Because international law is a new area of law its development is uncertain and its relevance and propriety is hotly disputed.

Sources of International Law

See main article: Sources of international law. International law has three primary sources: international treaties, custom, and general principles of law (cf. Art. 38 of the Statute of the International Court of Justice). International treaty law is comprised of obligations states expressly and voluntarily accept between themselves in treaties. Customary international law is derived from the consistent practice of States accompanied by opinio juris, i.e. the conviction of States that the consistent practice is required by a legal obligation. Judgments of international tribunals as well as scholarly works have traditionally been looked to as persuasive sources for custom in addition to direct evidence of state behavior. Attempts to codify customary international law picked up momentum after the Second World War with the formation of the International Law Commission (ILC). Codified customary law is made the binding interpretation of the underlying custom by agreement through treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to those states. General principles of law are those commonly recognized by the major legal systems of the world. Certain norms of international law achieve the binding force of peremptory norms (jus cogens) as to include all states with no permissible derogations. Legal principles common to major legal systems may also be invoked to supplement international law when necessary.

Interpretation of International Law

Where there are disputes about the exact meaning and application of national laws, it is the responsibility of the courts to decide what the law means. In international law as a whole, there are no courts which have the authority to do this. It is generally the responsibility of states to interpret the law for themselves. Unsurprisingly, this means that there is rarely agreement in cases of dispute. The Vienna Convention on the Law of Treaties writes on the topic of interpretation that: : "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." (article 31(1)) This is actually a compromise between three different theories of interpretation:
- The textual approach is a restrictive interpretation which bases itself on the "ordinary meaning" of the text, the actual text has considerable weight.
- A subjective approach considers the idea behind the treaty, treaties "in their context", what the writers intended when they wrote the text.
- A third approach bases itself on interpretation "in the light of its object and purpose", i.e. the interpretation that best suits the goal of the treaty, also called "effective interpretation". These are general rules of interpretation; specific rules might exist in specific areas of international law.

Enforcement by states

Apart from a state's natural inclination to uphold certain norms, the force of international law has always come from the pressure that states put upon one another to behave consistently and to honor their obligations. As with any system of law, many violations of international law obligations are overlooked. If addressed, it is almost always purely through diplomacy and the consequences upon an offending state's reputation. Though violations may be common in fact, states try to avoid the appearance of having disregarded international obligations. States may also unilaterally adopt sanctions against one another such as the severance of economic or diplomatic ties, or through reciprocal action. In some cases, domestic courts may render judgment against a foreign state (the realm of private international law) for an injury, though this is a complicated area of law where international law intersects with domestic law. States have the right to employ force in self-defense against an offending state that has used force to attack its territory or political independence. States may also use force in collective self-defense, where force is used against another state. The state that force is used against must authorize the participation of third-states in its self-defense. This right is recognized in the United Nations Charter.

Enforcement by international bodies

See main article: International legal system. Violations of the UN Charter by members of the United Nations may be raised by the aggrieved state in the General Assembly for debate. The General Assembly cannot make binding resolutions, but under the "Uniting for Peace" resolution (GA/RES/0377) it declared it could authorize the use of force if there had been Breaches of the Peace or Acts of Aggression, provided that the Security Council due to a negative vote of a permement member failed to act. It could call for other collective measures (such as economic sanctions) given a situation constituted the milder "threat to the Peace". The legal significance of such a resolution is unclear, as the General Assembly cannot issue binding resolutions. They can also be raised in the Security Council. The Security Council can pass resolutions under Chapter VI of the UN Charter to recommend "Pacific Resolution of Disputes." Such resolutions are not binding under international law, though they usually are expressive of the council's convictions. In rare cases, the Security Council can pass resolutions under Chapter VII of the UN Charter related to "threats to Peace, Breaches of the Peace and Acts of Aggression," and these are legally binding under international law, and can be followed up with economic sanctions, military action, and similar uses of force through the auspices of the United Nations. It has been argued that resolutions passed outside of Chapter VII can also be binding; the legal basis for that is the Council's broad powers under Article 24(2), which states that "in discharging these duties (exercise of primary responsibility in international peace and security), it shall act in accordance with the Purposes and Principles of the United Nations". The mandatory nature of such resolutions was upheld by the International Court of Justice in its advisory opinion on Namibia. The binding nature of such resolutions can be deduced from an interpretation of their language and intent. States can also, upon mutual consent, submit disputes for arbitration by the International Court of Justice (ICJ), located in The Hague, Netherlands. The judgments given by the Court in these cases are binding, although it possesses no means to enforce its rulings. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. Some of the advisory cases brought before the court have been controversial with respect to the courts competence and jurisdiction. Often enormously complicated matters, ICJ cases (of which there have been less than 150 since the court was created from the Permanent Court of International Justice in 1945) can stretch on for years and generally involve thousands of pages of pleadings, evidence, and the world's leading specialist public international lawyers. As of 2005, there are twelve cases pending at the ICJ. Decisions made through other means of arbitration may be binding or non-binding depending on the nature of the arbitration agreement, whereas decisions resulting from contentious cases argued before the ICJ are always binding on the involved states. Though states (or increasingly, international organizations) are usually the only ones with standing to address a violation of international law, some treaties, such as the International Covenant on Civil and Political Rights have an optional protocol that allows individuals who have had their rights violated by member states to petition the international Human Rights Committee.

History

Through the ages a code developed for the relations and conduct between nations. Even when nations were at war, envoys were often considered immune to violence. The first formal attempts in this direction, which over time have developed into the current international law, stem from the era of the Renaissance in Europe. In the Middle Ages it had been considered the obligation of the Church to mediate in international disputes. During the Council of Constance (1414) Pawel Wlodkowic, rector of Jagiellonian University (Kraków, Poland), theologian, lawyer and diplomat, presented the theory that all, including pagan, nations have right to self-govern and to live in peace and possess their land. In the 16th and 17th centuries the Church gradually lost its direct influence in international affairs, as Catholic and Protestant powers emerged and struggled for dominance and survival. At the beginning of the 17th century, several generalizations could be made about the political situation: # Self-governing, autonomous states existed. # Almost all of them were governed by monarchs. ##The Peace of Westphalia is often cited as being the birth of the modern nation-states, establishing states as sovereigns answering to no-one within its own borders. # Land, wealth, and trading rights were often the topics of wars between states. Some people assert that international law developed to deal with the new states arising, others claim that the lack of influence of the Pope and the Catholic church gave rise to the need for new generally-accepted codes in Europe. The Dominican professor of theology Francisco de Vitoria (in Latin Franciscus de Victoria) at the University of Salamanca lectured on the rights of the natives. He did so while Spain was at the height of its power, after the violent Spanish conquest of Peru in 1536. Charles V, Holy Roman Emperor, protested against the friar, but in 1542 new laws put the natives under protection of the Spanish crown. Vitoria is generally recognized as the founder of modern international law. (See also School of Salamanca.) The French monk Emeric Cruce (1590–1648) came up with the idea of having representatives of all countries meeting in one place to discuss their conflicts so as to avoid war and create more peace. He suggested this in his The New Cyneas (1623), choosing Venice to be the selected city for all of the representatives to meet, and suggested that the Pope should preside over the meeting. Of course, during the Thirty Years' War (1618–1648), this was not acceptable to the Protestant nations. He also said that armies should be abolished and called for a world court. Though his call to abolish armies was not taken seriously, Emeric Cruce does deserve his place in history through his foresight that international organizations are crucial to solve international disputes. Hugo Grotius (or Huig de Groot) (1583-1645) was a Dutch humanist and jurist considered central to the development of international law. He became a lawyer when he was 15 years old and got sentenced to life in prison after going against Maurice of Nassau, son of William of Orange in a trial, but he escaped and fled to Paris. In France, he developed his ideas on international law with his Mare Liberum (Latin for "Free seas"), in which he challenged the claims and attempts of England, Spain, and Portugal to rule portions of the oceans and seas. He gained new international fame in 1625 with his book De Jure Belli ac Pacis (The Law of War and Peace), as it became the first definitive text on international law in Europe. It was published only two years after The New Cyneas. Much of Grotius's content drew from the Bible and from classical history (just war theory of Augustine of Hippo). In his work he did not condemn war as only a political tool, considering cases in which war is appropriate. He further developed the just war theory. A just war fits certain criteria: # It can be to repel an invasion. # It can be to punish an insult to God. # There has to be a just cause (one of the two mentioned above). # It has to be declared by the proper authorities. # It must possess moral intention. # It must have a chance of success. # It must abstain from brutal practices. # Its end result must be proportional to the means used. The statesmen of the time believed no nation could escape war, so they prepared for it. King Henry IV's Chief Minister, the Duke of Sully, proposed the founding of an alliance of the European nations that was to meet to arbitrate issues and wage war not between themselves but collectively on the Ottoman Turks, and he called it the Grand Design, but was never established. After World War I, the nations of the world decided to form an international body. U.S. President Woodrow Wilson came up with the idea of a "League of Nations". However, due to political wrangling in the U.S. Congress, the United States did not join the League of Nations, which was one of the causes of its demise. When World War II broke out, the League of Nations was finished. Yet at the same time, the United Nations was being formed. On January 1, 1942, US President Franklin D. Roosevelt issued the "Declaration by United Nations" on behalf of 26 nations who had pledged to fight against the Axis powers. Even before the end of the war, representatives of 50 nations met in San Francisco to draw up the charter for an international body to replace the League of Nations. On October 24, 1945, the United Nations officially came into existence, setting a basis for much international law to follow.

Branches of International Law

- International Criminal Law
- The Law pertaining to Use of Force
- International Humanitarian Law
- Law of the Sea
- Diplomatic Law
- Consular Law
- Law of State Responsibility
- International Environmental Law

Notes and references

#Higgins R, Problems and process : international law and how we use it (Oxford : Clarendon Press, 1994) at 16. #Greig, D. W., International Law, 2nd edn (Butterworths: London, 1976)

Conflict of laws

Private International Law, International Private Law, or Conflict of Laws is that branch of law, private in some states, public in others, regulating all lawsuits involving a foreign law element where a difference in result will occur depending on which laws are applied as the lex causae. Firstly, it is concerned with determining whether the proposed forum has jurisdiction to adjudicate and is the appropriate venue for dealing with the dispute, and, secondly, with determining which of the competing state's laws are to be applied to resolve the dispute. It also deals with the enforcement of foreign judgments.

Names

The subject has three names which are generally interchangeable, although none of them is wholly accurate or properly descriptive. 'Conflict of Laws' is somewhat misleading, since the object of this branch of law is to eliminate the consequences of any conflict between competing systems of law rather than to provoke a conflict. In federal countries where an inter-state situation arises (such as in the United States), the term "Conflict of Laws" is preferred because describing it as a branch of "international" law would be confusing to lay citizens.

The stages in a conflict case

#The court must first decide whether it has jurisdiction and, if so, whether it is the appropriate venue given the problem of forum shopping. #The next step is the characterisation of the cause of action into its component legal categories which may sometimes involve an incidental question (also note the distinction between procedural and substantive laws). #Each legal category has one or more choice of law rules to determine which of the competing laws should be applied to each issue. A key element in this may be the rules on renvoi. #Once it has been decided which laws to apply, those laws must be proved before the forum court and applied to reach a judgment. #The successful party must then enforce the judgment which will first involve the task of securing cross-border recognition of the judgment.

Choice of law rules

Courts faced with a choice of law issue have a two-stage process: #the court will apply the law of the forum (lex fori) to all procedural matters (including, self-evidently, the choice of law rules); and #it counts the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection, e.g. the law of nationality (lex patriae) or domicile (lex domicilii) will define legal status and capacity, the law of the state in which land is situated (lex situs) will be applied to determine all questions of title, the law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, but the proper law has become a more common choice. For example, suppose that A who has a French nationality and residence in Germany, corresponds with B who has American nationality, domicile in Arizona, and residence in Austria, over the internet. They agree the joint purchase of land in Switzerland, currently owned by C who is a Swiss national, but they never physically meet, executing initial contract documents by using fax machines, followed by a postal exchange of hard copies. A pays his share of the deposit but, before the transaction is completed, B admits that although he has capacity to buy land under his lex domicilii and the law of his residence, he is too young to own land under Swiss law. The rules to determine which courts would have jurisdiction and which laws would be applied to each aspect of the case are defined in each state's laws so, in theory, no matter which court in which country actually accepts the case, the outcome will be the same (albeit that the measure of damages might differ from country to country which is why forum shopping is such a problem). In reality, however, moves to harmonise the conflictual system have not reached the point where standardisation of outcome can be guaranteed.

Pre-dispute provisions

Many contracts and other forms of legally binding agreement include a jurisdiction or arbitration clause specifying the parties' choice of venue for any litigation (called a forum selection clause). Then, choice of law clauses may specify which laws the court or tribunal should apply to each aspect of the dispute. This matches the substantive policy of freedom of contract. Judges have accepted that the principle of party autonomy allows the parties to select the law most appropriate to their transaction. Obviously, this judicial acceptance of subjective intent excludes the traditional reliance on objective connecting factors, but it does work well in practice.

The status of foreign law

Generally, when the court is to apply a foreign law, it must be proved by foreign law experts. It cannot merely be pleaded, as the court has no expertise in the laws of foreign countries nor in how they might be applied in a foreign court. Such foreign law may be considered no more than evidence, rather than law because of the issue of sovereignty. If the local court is actually giving extraterritorial effect to a foreign law, it is less than sovereign and so acting in a way that is potentially unconstitutional. The theoretical responses to this issue are:
- (a) that each court has an inherent jurisdiction to apply the laws of another country where it is necessary to achieving a just outcome; or
- (b) that the local court creates a right in its own laws to match that available under the foreign law. This explanation is sustainable because, even in states which apply a system of binding legal precedents, any precedent emerging from a conflicts case can only apply to future conflicts cases. There will be no ratio decidendi that binds future litigants in entirely local cases. Once the lex causae has been selected, it will be respected except when it appears to contravene an overriding mandatory rule of the lex fori. Each judge is the guardian of his or her own principles of ordre public (public policy) and the parties cannot, by their own act, oust the fundamental principles of the local municipal law which generally underpin areas such as labour law, insurance, competition regulation, agency rules, embargoes, import-export regulations, and securities exchange regulations. Furthermore, the lex fori will prevail in cases where an application of the lex causae would otherwise result in a fundamentally immoral outcome, or give extraterritorial effect to confiscatory or other territorially limited laws. In some countries, there is occasional evidence of parochialism when courts have determined that if the foreign law cannot be proved to a "satisfactory standard", then local law may be applied. Similarly, judges might assume in default of express evidence to the contrary that the place where the cause of action arose would provide certain basic protections, e.g. that the foreign court would provide a remedy to someone who was injured due to the negligence of another. Finally, some American courts have held that local law will be applied if the injury occurred in an "uncivilized place that has no law or legal system." See Walton v. Arabian American Oil Co., 233 F.2d 541 (2d Cir. 1956). If the case has been submitted to arbitration rather than a national court, say because of a forum selection clause, an arbitrator may decide not to apply local mandatory policies in the face of a choice of law by the parties if this would defeat their commercial objectives. However, the arbitral award may be challenged in the country where it was made or where enforcement is sought by one of the parties on the ground that the relevant ordre public should have been applied. If the lex loci arbitri has been ignored, but there was no real and substantial connection between the place of arbitration and the agreement made by the parties, a court in which enforcement is sought may well accept the tribunal's decision. But if the appeal is to the courts in the state where the arbitration was held, the judge cannot ignore the mandatory provisions of the lex fori.

Harmonisation

To apply one national legal system as against another may never be an entirely satisfactory approach. The parties' interests may always be better protected by applying a law conceived with international realities in mind. The Hague Conference on Private International Law is a treaty organisation that oversees conventions designed to develop a uniform system. The deliberations of the conference have recently been the subject of controversy over the extent of cross-border jurisdiction on electronic commerce and defamation issues. There is a general recognition that there is a need for an international law of contracts: for example, many nations have ratified the Vienna Convention on the International Sale of Goods, the Rome Convention on the Law Applicable to Contractual Obligations offers less specialised uniformity, and there is support for the UNIDROIT Principles of International Commercial Contracts, a private restatement, all of which represent continuing efforts to produce international standards as the internet and other technologies encourage ever more interstate commerce. But other branches of the law are less well served and the dominant trend remains the role of the forum law rather than a supranational system for Conflict purposes. Even the EU, which has institutions capable of creating uniform rules with direct effect, has failed to produce a universal system for the common market. Nevertheless, the Treaty of Amsterdam does confer authority on the Community's institutions to legislate by Council Regulation in this area with supranational effect. Article 177 would give the Court of Justice jurisdiction to interpret and apply their principles so, if the political will arises, uniformity may gradually emerge in letter. Whether the domestic courts of the Member States would be consistent in applying those letters is speculative.

External links

- [http://www.hcch.net/ Hague Conference on Private International Law] official website.
- International Institute for the Unification of Private Law (UNIDROIT) http://www.unidroit.org/
- United Nations Commission for International Trade Law (UNCITRAL) http://www.uncitral.org/
- [http://writ.news.findlaw.com/scripts/printer_friendly.pl?page=/commentary/20010927_sprigman.html Why the Hague Convention on jurisdiction threatens to strangle e-commerce and Internet free speech], by Chris Sprigman

References

- American Law Institute. Restatement of the Law, Second: Conflict of Laws. St. Paul: American Law Institute.
- Dicey and Morris on the Conflict of Laws (13th edition) (edited by Albert V. Dicey, C.G.J. Morse, McClean, Adrian Briggs, Jonathan Hill, & Lawrence Collins). London: Sweet & Maxwell 2000.
- North, Peter & Fawcett James. (1999). Cheshire and North's Private International Law (13th edition). London: Butterworths.
- Reed, Alan. (2003). Anglo-American Perspectives on Private International Law. Lewiston, N.Y.: E. Mellen Press. Category:International law ja:国際私法

Constitutional law

Constitutional law is the study of foundational laws that govern the scope of powers and authority of various bodies in relation to the creation and execution of other laws by a government. A constitution binds a government or governments, limiting the contexts in which rules may be created, interpreted and force may be applied. Constitutions may reference various bodies, including organizations, associations, stateless peoples and nation-states. Most commonly constitutional law is the law of these foundational laws, customs, and constitution a conventions in regard to nation-states. Not all nation-states have constitutions, though all such states have a jus commune, or law of the land, that may consist of a variety of imperative and consensual rules, that may be customary law, oral law and written law that apply in the various jurisdictions of such state. Of those nation-states that do have constitutions, not all are considered strictly written constitutions, as the laws that govern such issues may not be consolidated into one single constitution document or instrument. The constitutional law may be a matter of interpreting a variety of text which may also be informed by history, custom and unwritten constitutional conventions . Compare, for example, the written Constitution of the United States with British constitutional law, which arises from multiple sources including Magna Carta, the common law, and other customary sources. In some countries, the constitution is known as the Basic Law. Constitutional laws may often be considered second order rulemaking or rules about making rules of exercise power. One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power. Thus, for example, in the case of a unitary state, the Constitution will vest ulitimate authority in one central administration and legislature, and judiciary, though there is often a delegation of power or authority to local or municipal authorities. Whereas when a constitution establishes a federal state, it will identify the several levels of government coexisting with exclusive or shared areas of jurisdiction over lawmaking, application and enforcement.

Legislature

A legislature is a governmental deliberative assembly with the power to adopt laws. Legislatures are known by many names, including: parliament, congress, diet and national assembly. Important part of the US In parliamentary systems of government, the legislature is formally supreme and appoints the executive. In presidential systems of government, the legislature is considered a power branch which is equal to, and independent of, the executive. In addition to enacting laws, legislatures usually have exclusive authority to raise taxes and adopt the budget and other money bills. The consent of the legislature is also often required to ratify treaties and declare war.

Chambers

The primary component of a legislature is one or more chambers or houses: assemblies that debate and vote upon bills. Most legislatures are either bicameral or unicameral:
- A unicameral legislature is the simplest kind of law-making body and has only one house.
- A bicameral legislature possesses two separate chambers, usually described as an upper house and a lower house, which may differ in duties, powers, and methods for the selection of members. In most parliamentary systems, the lower house is the most powerful house while the upper house is merely a chamber of advice or review!!!! However in presidential systems the powers of the two houses are often similar or equal. In federations it is typical for the upper house to represent the component states. For this purpose the upper house may either contain the delegates of state governments, as is the case of Germany and was the case in the pre-19 century United States, or to be elected according to a formula that grants disproportionate representation to smaller states, as is the case today in Australia and the United States. Historically, as well as bicameral and unicameral bodies, there have also been rare instances of tricameral legislatures. Many legislatures are said to include not just one or more houses but also the head of state. This is because in most systems it is necessary that, after being approved by the house or houses of the legislature, a bill receive the assent of the head of state before it can become law. This may be the case even if, as is the case in many parliamentary systems, the assent of the head of state is merely a formality and will not be withheld. It is also common, however, for the head of state not to be considered a formal part of the legislature, even if they have the power to veto laws. The British Parliament formally consists of the Crown, and two houses; similarly, the Irish Oireachtas consists officially of the President and two houses. In contrast, the United States Congress consists only of its two houses and does not officially include the US president, despite the fact that he wields a veto.

Competences

The power of legislatures varies widely from country to country. Rubber stamp legislature is a derogatory name for a legislature that has no real power but simply approves, by unanimous or near unanimous votes, bills put before it by other institutions. For example, the legislatures of many Communist states were often derided as mere 'rubber stamps' for decisions of the ruling party. The term is not usually used to describe legislatures of parliamentary systems. Although the final draft of legislation introduced by the government almost always passes, these legislatures are generally not labelled "rubber stamps" because legislators are involved in the drafting and amendment of bills.

List of titles of legislatures

National
- Parliament
- Congress
- Diet
- National Assembly

- Althing — Iceland
- Assembleia da República — Portugal
- Bundestag — Germany
- Cortes Generales — Spain
- Eduskunta or Riksdag — Finland
- Federal Assembly — Russia, Switzerland
- Folketing — Denmark
- Knesset — Israel
- Legislative Yuan — Republic of China/Taiwan
- Majles Al-Ummah — Kuwait
- Oireachtas — Republic of Ireland
- Riigikogu — Estonia
- Riksdag — Sweden
- Rajya Sabha/Lok Sabha — India
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