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Sources of modern law Growing use of law in modern world In the opinion of many people, the law is a necessary evil that should be used only when everyday, informal ways of setting disputes break down. Even so, some transactions in modern society are complex that few of us would risk making them without first seeking legal advice; for example, buying or selling a house, setting up a business, or deciding whom to give our property to when we die. In some societies, such as the USA, precise written contracts, lawyers and courts of law have become a part of daily life, whereas in others, such as Japan, lawyers are few and people tend to rely on informal ways of solving disagreements. On the whole it seems that people all over the world are becoming more and more accustomed to using legal means to regulate their relations with each other. Multinational companies employ expensive experts to ensure that their contracts are valid wherever they do business. Nonindustrialized tribes in South America use lawyers in order to try stop governments from destroying the rainforests in which they live. And at a time when workers, refugees, commodities and environmental pollution are traveling around the world faster than ever before, there are increasing attempts to internationalize legal standards. When it helps ordinary people to reach just agreements across social, economic and international barriers, law seems to be regarded as a good thing. However, when it involves time and money and highlights peoples inability to cooperate informally, law seems to be an evil but necessary one that everyone should have a basic knowledge of. 2. Descriptive and prescriptive The English word law refers to limits upon various forms of behavior. Some laws are descriptive: they simply describe how people, or even natural phenomena, usually behave. An example is the rather consistent law of gravity, another is the less consistent laws of economies. Other laws are prescriptive they prescribe how people ought to behave. For example, the speed limits imposed upon drivers are laws that prescribe how fast we should drive. They rarely describe how fast we actually do drive, of course. 3. Motives of governments in making and enforcing laws Social control is undoubtedly one purpose. Public laws, establish the authority of the government itself, and civil laws provide a framework for interaction among citizens. Without laws, it is argued, there would be anarchy in society. Another purpose is the implementation of justice. Justice is a concept that most people feel is very important but few are able to define. Sometimes a just decision is simply a decision that people feel is fair. If we are always fair majorities, we will often be unfair to minorities. Sometimes laws are simply an attempt to implement common sense. It is obvious to most people that dangerous driving should be punished; that fathers should provide financial support for their children of they desert their families; that a person should be compensated for losses when someone else breaks an agreement with him or her. But in order to be enforced, common sense needs to be defined in law, and when definitions are being written, it becomes clear that common sense is not such a simple matter. Instead, it is a complex skill based upon long observation of many different people in different situations. 4. Common law and continental law systems, their main principles Each country in the world, even each state of the US, has its own system of law. However, it is generally true to say that there are two main traditions of law in the world. One is based on English Common law and has been adopted by many Commonwealth countries and most of the US. The other tradition, sometimes known as Continental, or Roman law, has developed in most of continental Europe, Latin America and many countries in Asia and Africa which have been strongly influenced by Europe. Common law, or case law systems, particularly that of England, differ from Continental law in having developed gradually throughout history, not as the result of government attempts to define or codify every legal relation. Customs and court rulings have been as important as statutes. Judges do not merely apply the law, in some cases courts to follow. 1 1.

If the essential elements of a case were the same as those of previous recorded cases, then the judges was bound to reach the same decision regarding guilt or innocence. If no precedent could be found, then the judge made a decision based upon existing legal principles, and his decisions would become a precedent for other courts to follow when a similar case arose. The doctrine of precedent is still a central feature of modern common law systems. Courts are bound by the decisions of previous courts unless it can be shown that the facts differ from previous cases. Sometimes governments make new laws statutes to modify or clarify the common law, or to make rules where none existed before. Another important feature of the common law tradition is equity. By the fourteenth century many people in England were dissatisfied with the inflexibility of the common law, and a practice developed of appealing directly to the king or to his chief legal administrator, the Lord Chancellor. As the Lord Chancellors court became more willing to modify existing common law in order to solve disputes, a new system of law developed alongside the common law. This system recognized rights that were not enforced as common law but which were considered equitable, or just, such as the right to force someone to fulfill a contact rather than simply pay damages for breaking it or the rights of a beneficiary of a trust. The courts of common law and of equity existed alongside each other for centuries. Continental systems are sometimes known as codified legal systems. They have resulted from attempts by governments to produce a set of codes to govern every legal aspect of a citizens life. Many countries can be said to have belonged to the Roman tradition long before codifying their laws, and large uncodified areas of the law still remain. French public law has never been codified, and French courts have produced a great deal of case law in interpreting codes that become out of date because of social change. The clear distinction between legislature and judiciary has weakened in many countries, including Germany, France and Italy, where courts are able to challenge the constitutional legality of a law made by parliament. 5. The main categories of civil and public law One important distinction is between civil law and public law. Civil law concerns disputes among citizens within a country and public law concerns disputes between citizens and the state, or between one state and another. The main categories of English civil law are: Contracts: binding agreements between people Torts: wrongs committed by one individual against another individuals person, property or reputation Trusts: arrangements whereby a person administers property for another persons benefit rather than his own land law Probate: arrangements for dealing with property after the owners death The main categories of public law are: Crimes: wrongs which even when committed against an individual are considered to harm the well-being of society in general Constitutional law: regulation of how the law itself operates and of the relation between private citizen and government International law: regulation of relations between governments and also between private citizens of one country and those of another Differences between criminal and civil procedures Criminal and civil procedure is different. Although some systems, including the English, allow private citizen to bring criminal prosecution against another citizen, criminal actions are nearly always started by the state. Civil actions, on the other hand, are usually started by individuals. Some courts, such as the English Magistrates Courts and the Japanese Family Court, deal with both civil and criminal matters. Others, such as the English Crown Court, deal exclusively with one or the other. 2


In Anglo-American law, the party bringing a criminal action is called the prosecution, but the party bringing a civil action is the plaintiff. In both kinds of action the other party is known as the defendant. A criminal case against a person called Ms. Sanchez would be described as the People vs. (versus, against) Sanchez in the US and R. (Regina) vs. Sanchez in England. But a civil action between Ms. Sanchez and Mr. Smith would be Sanchez vs. Smith if it was started by Sanchez, and Smith vs. Sanchez if it was started by Mr. Smith 7. The main principles of the legal system in the Republic of Belarus. The Republic of Belarus like any other state has its own legal system, which has both common features with legal systems of other countries and its special characteristics. Analysis of origination and development of the legal system of the Republic of Belarus proves the fact that the content and the dynamics of this system have been affected not only by politics and political culture but also by the entire cultural wealth of society: religion, philosophy, morals, artistic culture, science. The legal system of the Republic of Belarus as well as legal systems of other states of continental Europe belongs to the Roman-Germanic Law Family. The main characteristics of the Roman-Germanic Law Family are: optimal generalization of a rule of law, dividing of law into public and private law, separation of different branches of law. Although the first steps of state system formation in Belarus were made only at the beginning of the 20th century, the legal system of our country has profound historical roots. The structure of the legal system of the Republic of Belarus contains the following groups of legal elements: rules of law, legal principles, legal institutions (normative aspect); legal institutions (organizational aspect). A branch of law is the basic structural unit of the system. The system of law of the Republic of Belarus consists of the following branches: constitutional law, civil law, administrative law, criminal law, labour law, family law, land law, financial law, law of criminal procedure, law of civil procedure, law of execution of criminal punishment, etc. The Constitution of the Republic of Belarus is the Fundamental Law of the Republic of Belarus having supreme legal force. Legislative acts also cover laws enacted by the Parliament and Decrees of the President, Decisions of the Government as well as legal acts of ministries and other governmental departments. Acts of Local Councils of Deputies and Local Executive Committees are the most important acts of secondary legislation.