The historical law school believes that today`s societies should base their legal decisions on the examples of the past. Precedents would be more important than moral arguments. In most jurisdictions, such as the United States, there is a fairly strict distinction between criminal law (for acts that constitute crimes against society as a whole) and civil law (usually for disputes between individuals or companies). The basic ethical standards for keeping promises and not harming others are reflected in the civil law of contracts and torts. In the United States, both states and the federal government have roles to play, and sometimes those roles overlap, as in environmental standards set by the states and the federal government. “Law is the command of a sovereign” represents which school of legal thought? Law is a word that means different things at different times. Black`s Law Dictionary says that law is “a set of rules of action or conduct prescribed by the supervisory authority and having binding legal force. What is followed and must be followed by citizens subject to sanctions or legal consequences is a law. Black`s Law Dictionary, 6th edition, s.v.
“Law”. As the legal philosopher John Austin succinctly put it: “Law is the command of a sovereign.” Law is law, in other words, only if it derives from a recognized authority and can be applied by that authority, or sovereign authority within a nation-state. Sovereignty is what sovereigns exercise. This usually means the power to enact and enforce laws within the nation-state – such as a king, president, or dictator – that has power in a defined territory or territory. Positivism is a philosophical movement that claims that science provides the only knowledge accurate enough to be worthwhile. But what about the social phenomena of laws? Whether the United States will remain a supporter of free trade and continue to participate as a leader in the WTO will ultimately depend on whether citizens elect leaders who support the process. For example, if Ross Perot had been elected in 1992, NAFTA would have been politically (and legally) dead during his mandate. Positivism has its limits and its criticisms. New Testament readers may recall that King Herod, fearing the birth of a Messiah, issued a decree that all male children under a certain age were to be killed. Because it was the order of a sovereign, the decree was executed (or, in legalese, the decree was “executed”). Suppose a group seizes power in a certain place and orders that women cannot go to school and can only receive medical treatment from women, even though their condition is life-threatening and women doctors are rare. Let us also suppose that this commandment is carried out simply because it is the law and is carried out with all its might.
The people who live there will undoubtedly question the wisdom, justice or goodness of such a law, but it is nevertheless a law and is generally enforced. To avoid the effects of the law, a citizen would have to flee the country completely. During the Taliban regime in Afghanistan, where this example comes from, many fled. There are also legal systems that differ considerably from the common law and civil law systems. Other communist and socialist legal systems (e.g. Cuba and North Korea) are based on assumptions very different from those of English common law or European civil law. Islamic and other religion-based legal systems bring different values and assumptions to social and business relations. There are various sources of law in the U.S.
legal system. The Constitution of the United States is fundamental; American law and common law must not conflict with its provisions. Congress creates the legal law (with the signature of the president), and the courts will interpret the constitutional law and the law. Where there is no constitutional or statutory law, the courts work in the common law domain. The same applies to the law in the fifty states, each of which also has a constitution or a fundamental law. Most judicial decisions that do not apply legislative acts (so-called laws) concern one of the three areas of law: property, contract or tort. Property law deals with the rights and obligations of those who can legally own land (immovable property), how such property can be legally confirmed and protected, how property can be bought and sold, the rights of tenants and the different types of land “estates” (e.g. fee simple, life assets, future interest, easements or rights of way B.
Contract law deals with the types of promises that courts should enforce. For example, should the courts enforce a contract where one of the parties was drunk, underage or mentally ill? Should the courts enforce a contract if one of the parties appears to have an unfair advantage? What types of contracts should be written to be enforced in court? The law on damages deals with the types of cases that involve a certain type of damage and/or prejudice between the plaintiff and the defendant in the absence of a contract. So if you are slandered or a competitor lies about your product, your remedy would be a tort, not a contract. Under most treaties, the United States may withdraw or withdraw any voluntary limitation on its sovereignty; Participation in contracts is exclusively subject to compulsory voting. That is, the United States can “detach” itself whenever it wants. But for practical reasons, some restrictions on sovereignty may be good for the nation. The argument is that if free trade in general helps the United States, it makes sense to be part of a system that promotes free trade; and, despite some temporary setbacks, the WTO decision-making process will (hopefully) bring far more benefits than losses in the long run. This argument is based on the utilitarian theory (according to which the best overall policy brings the greatest benefit to society) and David Ricardo`s theory of comparative advantage.
Most of what we discuss in this book is positive law – especially American positive law. We will also examine the laws and legal systems of other nations. But first, it will be useful to cover some basic concepts and distinctions. In international legal systems, sources of law include formal contractual agreements between nation-states. (agreements between states or countries) and customary international law (usually consisting of judicial decisions of national judicial systems when parties from two or more nations are involved in a dispute). Each of the different law schools has a particular conception of what a legal system is or what it should be. Natural law theorists emphasize the rights and duties of government and the governed. Positive law presupposes that law is only the command of a sovereign, the political power to which the governed will obey.
Recent writings in the various schools of legal thought emphasize long-standing models of government by the rich over others (the CLS school) and by men over women (ecofeminist legal theory). No matter how wrong a person`s actions may seem to you, the only injustices you can correct in court are those that may be related to one or more pleas in a complaint is a legal basis on which a claim is based.
