In the legal lexicon, law is the set of legal norms present in a legal system and/or the legal rules governing a particular discipline, but also a synonym for power or faculty. By extension it also indicates the science that studies legal norms and legal sources; still other meanings may derive from detailed phraseologies.
In order to achieve its objectives, law performs certain essential functions:
- recognizing and protecting fundamental human rights and freedoms;
- to command certain behaviors and prohibit others
- to provide for sanctions in the event that obligations or prohibitions are not respected;
- attributing particular powers to certain citizens in the collective interest: for example, it is the law that allows the police to intervene to repress a crime;
- to prescribe how and by whom new legal norms may be created, ensuring that laws are produced on the basis of some general criteria always to the advantage of the whole social community.
The term law is used with different meanings:
- the set and complex of legal norms that regulate the lives of the members of the community of reference, also called doctrine in the form of legal order;
- jurisprudence, understood as the legal science, which studies the norms and the legal interpretation of them;
- a faculty guaranteed by the legal system to each subject of law;
- the judgment of the legality and legitimacy of the actions of the State and of the physical and legal personalities with which it deals;
- an economic contribution linked to a type of tax, or benefit due to a party.
When it refers to the set of rules that are in force in a State at a given time and that respond to the need of citizens to live in a society that is as orderly and peaceful as possible; in this case we speak of objective law. Sometimes, however, the term right takes on a different meaning, as it corresponds to the concept of “power, faculty”; in this case we speak of subjective right. The problem of a concrete and specific definition, however, has engaged scholars of all ages, and is still an open question, the solution to which depends largely on the philosophical framework to which each scholar refers and through which he or she addresses the issue. We speak, therefore, of law:
- in a subjective sense is the power to act that the legal system recognizes in favor of a subject, so that he can satisfy his own interest worthy of protection;
- in an objective sense it is the set of general and compulsory rules of a State, the non-observance of which determines sanctions and whose purpose is to ensure peaceful coexistence. It is also called the legal system. Law in the objective sense is divided into two basic branches:
- public law, consisting of the rules governing relations between the state and public bodies and private entities. It also includes the rules relating to the organization and functioning of public bodies. Public law includes constitutional law, administrative law, criminal law, procedural law, public international law, etc.;
- private law, consisting of the rules governing relations between private parties. Civil law, commercial law and shipping law belong to private law.
When we talk about law as a science, the term takes on a connotation that indicates the study of law; by law here we generally mean jurisprudence, the study of norms. An answer that can be defined exact in absolute does not exist also because the law has different manifestations depending on the model examined (for example, just think of the distinction between the civil law of the States of continental Europe and those linked to them and the common law of the Anglo-Saxon countries.
With a more complex definition, law can be defined as the regulation of relations between individuals who are part of a state community, assisted by the guarantee of its observance by the power of the State authority, which sanctions violations of the rules established and “codified” (criminal law) by the State through the criminal process (criminal procedural law), sets the rules that private individuals must observe in their relations with each other (civil law), decides impartially on disputes between private individuals through the civil process (civil procedural law), organizes public services and public administration (administrative law) with the power of citizens to enforce the rules established for the activity of the public administration and public services through the administrative process and with the obligation of citizens to contribute according to certain rules (tax law) to the resources necessary for the functioning of public services and public administration, with the power for citizens to have a judge verify the correctness also of the contribution requested from them (tax process). International law regulates relations between states, citizens of different states (private international law) and international organizations (law of international organizations).
It is necessary to remember, that the norms are issued by the Public Authority, apply on the whole territory of a state and are valid for all those who are on the state territory. The rules are drafted in articles and these in subparagraphs and interpreted by jurists.
From ancient Greece to the Middle Ages
The study of law as a philosophical research wants to define the concept of law in its logical form and specify the character of universality, making it rise to an ideal of justice, which serves as a model for positive law to correct its possible imperfections. The philosophy of law has its roots in natural law as a requirement for absolute justice (hence its definition of “science of natural law”, which has endured until almost the nineteenth century).
Originally, the philosophy of law appears to be intimately united with and subordinate to morality, theology and politics (for example, in the sacred books of the East), presenting itself as unquestionable positive laws, since they emanate from an unquestionable power. The first critical discussion on the essence of justice took place in Greece, stimulated especially by the Sophists; Plato found the field prepared to outline the vision of his State as a perfect organism in which the various social classes are placed with precise attributions; Aristotle in turn outlined a theory of justice, which looks especially to the value of things and dispenses them according to a distributive principle, which takes into account the merit of people; in the vision of the State he values the individual, even if he still admits slavery.
The Stoics entered into the philosophical investigation of law by claiming the existence in nature of a universal law, which in individuals manifests itself as right reason, while the Epicureans conceived the State as the effect of a utilitarian calculation. The Stoics inspired Cicero arguing that there is a natural law attested by conscience and valid for all times and places. In the various Roman legal schools prevailed the concept of rationality inherent in things, superior to human will. Close to this concept of natural law will be the ius gentium. In elaborating their own law, the Romans kept it in close connection with morality, even if in practical cases they sensed the differences, for which the jurist Paul affirms: “Not everything that is lawful is honest”.
Christianity exalted the brotherhood of all men and made love of one’s neighbor the moral and juridical foundation of society, succeeding in mitigating numerous juridical institutions. Christianity itself, however, accepted a large part of the juridical patrimony of Rome and included it in its organization, raising it to a manifestation of divine wisdom: a grandiose example of this construction was St. Augustine’s De civitate Dei. Christian juridical thought received its definitive formulation from St. Thomas, who distinguished three orders of laws: the lex aeterna, or divine reason that governs the world; the lex naturalis, impressed by God in the heart of man and made to fit his nature; the lex humana, invented by man on the presuppositions of natural law. From this strict dependence of positive human law on divine law arose the supremacy of the Church over the State, which found its most extreme formulation in the “theocracy” of Boniface VIII and was the basis of the struggle for investiture. This doctrine was opposed by Dante Alighieri (theory of the two Suns) and by Marsilio da Padova (independence of the State from the Church).
From the Renaissance to the Contemporary Age
At the beginning of the modern era, the hypothesis of a social contract as the foundation of the State took shape. With the Renaissance and the Protestant Reformation, law was completely detached from theology, and Grotius took advantage of this to build his system of natural and international law on the sole basis of human reason. The wide influence of his thought led, in the sec. The wide influence of his thought led, in the seventeenth century, to the formation of a “school of natural law”, which sometimes sinned in abstract rationalism, but was able to investigate the foundations of law and developed the concept of the modern rule of law: among these thinkers Locke affirmed that all men possess by nature the rights of liberty, equality, work and property and that the State has the function of protecting them; Hobbes, on the other hand, sustained the necessity of an absolute government to temper the aggressive nature of man; Pufendorf distinguished law from theology and natural law from positive law, assigning to the former the innate rights and to the latter the acquired ones.
Fundamental to man is the obligation of peaceful sociability as it corresponds to the purpose of mankind. Already in the eighteenth century Vico and Montesquieu stopped to study the phenomenology of positive law, which Vico found consistent with the natural one, while Montesquieu examined the legal institutions of many peoples to explain the reasons and circumstances (including environmental) that had originated. However, the “school of natural law” still prevailed, especially in Rousseau, where the hypothesis of a passage from the state of nature to the state of society by means of a contract is subject to the inalienable rights of liberty and equality, and the state is legitimate only insofar as it recognizes and guarantees them. These concepts will find application in the French Revolution with the “Declaration of the Rights of Man and of the Citizen”.
Kant had the merit of having eliminated the confusion between historical and rational elements: he affirmed that natural law is based exclusively on rational principles a priori and has ethical value. The union of citizens in the State obeys an imperative of reason. In his footsteps, the “School of Natural Law” became known as the “School of Rational Law”. The “Historical School of Jurists” reacted to rationalism and, especially with Savigny, used the concept of the “spirit of the people” (Volkgeist) as a principle and source of law, meeting with the philosophy of Schelling and Hegel. The latter identified law as one of the forms of the objective spirit.
In the nineteenth century the “Catholic school” sought new developments to the principles developed by St. Thomas, connecting the various branches of law with natural law. Similar to it is the thought of Rosmini, who affirmed the ethical principle of “recognizing being in its order” from which emanates the absolute respect of human personality. However, there was also a widespread tendency to deny any spiritual requirement to law and to consider it as a historical and positive fact: the leader of this tendency was A. Comte, who proposed the foundation of the “natural law”. Comte, who proposed the foundation of sociology as a new unitary science of social facts, helping to spread the tendency to stop at positive legal phenomenology. Related to legal positivism was the theory of the “Vienna School”, which tended, according to its main representative, H. Kelsen, to consider positive law as it is, beyond any evaluation.
In the English field prevailed the utilitarian principle (J. Bentham, J. S. Mill), which was combined, in Darwin and Spencer, with the theory of evolution, according to which law would be based on the biological conditions necessary for the existence of individuals and society. In the United States the study of law kept away from excessive formalism and any abstract conceptualism, focusing on the reality of law in judicial practice and its function in social life. Over and above the different positions of the various schools of law, it can be affirmed that all of them have made a more or less important contribution to the affirmation of the inviolable rights of man and of peoples. A solemn document of this is the “Universal Declaration of Human Rights” approved by the UN General Assembly in 1948.
From the primitive age to the end of the Roman Empire
Present at every stage of human evolution, law found its first expressions in primitive communities as a magical-religious rule capable of regulating the acts of the individual and the community under the threat of punishment. With the subdivision of work tasks and the formation of the first forms of power, the legal rule, equipped with appropriate sanctions, assumed imperative value in order to ensure a specific material or moral good.
In the absence of writing, the complex of these rules was transmitted orally in the form of sayings or proverbs, which in their original phase constituted a popular right, enclosed in the customs, in domestic, agricultural, economic, religious, games, etc.. When the norm was written down and structured into legislation, the figures of the legislator and the judge were also specified and the experience became the object of reflection, founding the mother-ideas of law.
With the consolidation of the forms of power, the norms imposed by the authority became more and more numerous with respect to those arising directly from the community, creating conflicts that contributed to the evolution of institutions. Both these sources of law sought to declare their divine origin and this is still found in the most ancient civilizations, where almost always the rules of law coincide with the commands of religion or are strongly influenced by it. Only with the refinement of civil organization was a true autonomy of law created as a complex of rules intended to regulate social coexistence.
Ancient Egypt already knew institutions of considerable value, especially in the field of obligations and succession. But also the rights in rem and certain forms of guarantee (for example, the pledge) had an ancient tradition. More evolved and complex was the Sumerian-Babylonian law, in which also institutes of the wide Semitic area, of the Cassites, of the Mitanni and of the Hittites had found acceptance. Legal monument of this era is the Code of Hammurabi, where justice derives its effectiveness from the will of the god Shamash and is administered with the intent to protect the people and defend the weak against the oppression of the strong.
The laws already had their own well-ordered structure and specified the crimes against the administration of justice, against property, commerce, marriage and family; other rules regulated agricultural work, professional responsibility, the treatment of slaves, wages and rents; penalties were in proportion to the damage done to society; the legal position of women was considerable.
Greek law was essentially a law of the pólis, for which each city had its own laws and its magistrates. However, despite the differentiations, there are common elements in the discipline of private and commercial law. This element became even more evident at the decline of the pólis and with the birth of monarchies, objectified in a common homogeneous law, able to influence the Romans themselves. Great insights had the Greeks in matters of property and possession, in pupillary law and legislation on slaves. But the greatest depth of legal thought, combined with the most efficient organization, was at the Romans.
From the original law of the tribes, understood as the administrative division of the people, to the perfect republican organization, the entire Roman legal system was marked by the most rational use of the rules of law in the interest of the state and its citizens; the meticulous defense of the “public thing” was matched by an extraordinary and harmonious continuity of institutions perfectly suited to the various political and social conditions. Some principles are especially original: the “educating mission” of law, aimed at preventing rather than repressing the illegal and the acceptance of the concept of “equity”, understood as a natural reason designed to temper the rigidity of positive rules.
With the decline of Roman political power in Europe began a new era of production of law, in which new institutions appeared, but these were always under the high influence that Roman law still exercised. A notable example of this close symbiosis was Lombard law, which included the laws of kings and emperors up to Henry III (1056).
From the Middle Ages to the Modern Age
With regard to the history of law, the Middle Ages had always valued the brief but valuable Enchiridion of Sextus Pomponius, which had described the origin and evolution of the law of Rome and its sources and magistracies. Between the sec. XIII and XIV the medieval mentality, accustomed to consider the law sub specie aeternitatis, was led to revise their views by the revival of Aristotelian philosophy and the renewed sense of individuality: Giovanni d’Andrea and Baldo degli Ubaldi fixed in their writings the memory of the most famous interpreters of Roman and canon law; later Diplovataccio also added the indications of their works and his contemporary Aymard du Rivail in his Historia iuris civilis linked to the histories of legal institutions and their commentators that of political structures.
It is interesting to note that it was precisely the Renaissance, which condemned the Middle Ages as an “age of darkness”, that was the first to take into consideration the study of Germanic legal institutions, highlighting their most important principles and data. But the decisive element of this period still remained the study of Roman law and especially the return to its application as common law. Notable in this field were the studies carried out in France, Holland and Germany. In Italy, in the eighteenth century, by a large group of historians, on which Muratori excels, came to light rich materials, which allowed a close connection of Roman law with that of many other peoples: Vico gave this research a philosophical foundation, Giannone created an organic link between civil history and legal developments. This age ideally ended with the French Revolution and the radical renewal it brought.
The new historical phase of law had as its main feature the compilation of national codes, which marked the end of the practical use of Roman legal sources and at the same time represented the fundamental and peculiar element of the modern state, born from the French Revolution. That is, modern legal production was born, no longer based on customary sources or the influence of jurisprudence, but on state legislation and codification.
A first illustrious example was the Napoleonic Code, which informed a large part of European legislation with its principles. Traditionally opposed to Roman law (to which the legal systems of the countries of continental Europe and Latin America belong) is Anglo-American law, which today (including the countries already or still belonging to the British Commonwealth) affects a population of approximately 800 million people. The unitary element of the legal systems of these peoples is given by their common matrix constituted by Common Law, which was developed in England after the Norman conquest (11th century) and which differs from the Roman basis (Civil Law) in its concepts, structures, fundamental institutions and sources.
The Common Law or Common Law replaced the previous local laws and was constituted as the “justice of the king”, to which everyone could have recourse throughout the country, quite distinct from any other source of law of a particular character. The remedies proposed by the common law were consecrated in briefs (writs), which marked the beginning of judicial proceedings and which, because of their limited number, left the judge with ample scope to shape and develop them. From a technical point of view the briefs were issued by the Chancellery, but, after the Statute of Westminster (1285), this right was limited leaving an even greater field to the judges, who had the power to expand and modernize the existing remedies according to new needs. On this basis of the Common Law and for those cases in which it had gaps, a separate body of rules was created, which constituted the institution of equity, emanating from the Chancellery and leading the case back to the Common Law or to a new obligation, which overlapped with it.
Equity was not, however, a means to circumvent the difficulties of the Common Law, but rather an instrument to enforce it and in this case it had more effective means, because where the Common Law only called into question the responsibility of the subject, equity required him to fulfill his obligation. Especially at the beginning there were lively contrasts between the two sources of law, but they subsided to the extent that equity sought a connection with Common Law and contributed to the expansion of its limits.
This successful collaboration took place during the seventeenth century, but in the process of time the equity, which was exercised by the chancellor, assisted by three judges, became rigid in precise institutions and no longer had any connection with the common law. At first, partial reforms were attempted to remedy the situation and finally, in 1873, the two systems were merged into one and each court was given the power to apply equity whenever there was a conflict with common law. The competence of the judge was thus further enlarged, who could now intervene in both fields, even if his action had to be contained within the limits of previous sentences.
From what has been said, it emerges that the fundamental characteristic of Anglo-American law is its intrinsic historicity; it owes the genesis of its institutions not to a doctrinal elaboration, but to the living experience of the process. It is therefore an essentially jurisprudential law, whose principles are identified with those of the judicial decisions, even where there is a legislative provision. Unlike English law, U.S. law makes greater use of Statute Law, but even this acquires value only through the elaboration of the rules expressed by case law, which for both countries remains the primary element in the production of law.
- International law