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The rule of law also requires that people can expect predictable outcomes from the legal system; this is what Justice Wood implies when she says that “laws must not be arbitrary.” Predictable outcomes mean that people who act in the same way can expect the law to treat them the same. If similar actions do not lead to similar legal outcomes, people cannot use the law as a guideline for their actions, and a “rule of law” does not exist. However, the system has become too systematized – too rigid and inflexible. As a result, over time, more and more citizens asked the King to repeal the common law and, on behalf of the King, the Lord Chancellor decided to do what was only in one case. Since the time of Sir Thomas More, the first barrister to be appointed Lord Chancellor, a systematic body of justice has developed alongside the rigid common law and has developed its own Court of Chancery. Initially, fairness was often criticized as unpredictable, varying according to the length of the chancellor`s foot. [101] Over time, the courts have developed sound principles, particularly under Lord Eldon. [102] In 19th century England and 1937 in the United States, the two systems were merged. The rule of law is a term often used but difficult to define. A commonly heard saying is that the rule of law means governing the law, not men. But what is meant by “a government of law, not men”? There can be no free society without law administered by an independent judiciary. If one person can be allowed to determine for himself what the law is, every person can.

It means chaos first, then tyranny. Lord King LC was concerned that trustees would take advantage of opportunities to use the trust assets for themselves instead of worrying about them. Economic speculators who used trusts had recently caused a stock market crash. Strict obligations for fiduciaries have found their way into corporate law and have been applied to directors and chief executive officers. Another example of a fiduciary`s duty might be to invest or sell real estate wisely. [223] This is particularly true for pension funds, the main form of trust where investors are trustees of people`s savings until retirement. But foundations can also be created for charitable purposes, famous examples are the British Museum or the Rockefeller Foundation. Sociology of law is a diverse field of study that studies the interaction of law and society and straddles jurisprudence, philosophy of law, social theory, and more specialized topics such as criminology.

[235] The institutions of social construction, social norms, dispute resolution, and legal culture are key areas of study in this field of knowledge. The sociology of law is sometimes considered a sub-discipline of sociology, but its links to the academic discipline of law are equally strong, and it is best seen as a transdisciplinary and multidisciplinary study focused on the theorization and empirical study of legal practices and experiences as social phenomena. In the United States, the field is generally referred to as Law and Society Studies; in Europe, we speak more often of studies in social law. At first, lawyers and legal philosophers were suspicious of the sociology of law. Kelsen attacked one of its founders, Eugen Ehrlich, who sought to clarify the differences and connections between the positive law that lawyers learn and apply and other forms of “law” or social norms that govern everyday life and generally prevent conflicts from reaching lawyers and courts. [236] Contemporary research in the sociology of law is deeply concerned with how law develops outside of distinct state jurisdictions, is produced by social interaction in many types of social arenas, and acquires a variety of sources of authority (often competing or contradictory) in the community networks that sometimes exist within nation-states. but increasingly also on a transnational scale. [237] What does this old document have to do with the rule of law? A lot. He recognizes that a person`s fate should not be in the hands of a single individual – in this case the king.

It requires that a judgment be rendered against a person in accordance with the law. Magna Carta laid the foundation for the concept of due process as it developed first in England and then in the United States. Due process means that everyone has the right to a fair and impartial hearing to determine their legal rights. Civil law courts treat contracts differently in many respects, with the state playing a more interventionist role in the drafting and enforcement of contracts. [202] Compared to common law jurisdictions, civil law systems contain more binding clauses in contracts, give courts greater flexibility in interpreting and revising contract terms, and impose stricter good faith obligations, but are also better able to apply punitive clauses and specific performance of contracts. [202] Nor do they require that the binding nature of a contract be taken into consideration. [203] In France, an ordinary contract is said to be concluded simply on the basis of a “meeting of spirits” or a “concurrence of wills.” Germany has a particular approach to contracts that is related to property law. Their “principle of abstraction” means that the personal contractual obligation is constituted separately from the title deed. If contracts become invalid for any reason (for example, if a car buyer is so drunk as to be incompetent),[204] the contractual payment obligation may be declared invalid separately from vehicle ownership.

The Enrichment Without Cause Act, not contract law, is then used to return ownership to the rightful owner. [205] Hugo Grotius, the founder of a purely rationalist system of natural law, argued that law derives both from a social impulse – as Aristotle had suggested – and from reason. [45] Immanuel Kant believed that a moral imperative requires that laws “be chosen as if they were to be regarded as universal laws of nature.” [46] Jeremy Bentham and his pupil Austin, following David Hume, believed that this confused the problem of the “east” with what should be. Bentham and Austin argued for the positivism of law; This true law is completely separate from “morality.” [47] Kant was also criticized by Friedrich Nietzsche, who rejected the principle of equality and believed that law emanated from the will to power and could not be called “moral” or “immoral.” [48] [49] [50] Neither laws nor the procedures for their creation or implementation should be secret; and. Laws must not be arbitrary. Case law, which is also used interchangeably with the common law, refers to the set of precedents and powers established by previous court decisions on a particular subject or issue. In this sense, the case law differs from one jurisdiction to another. For example, a case in New York would not be decided with the California jurisdiction.

Instead, New York courts will analyze the issue based on binding precedents. If there are no previous decisions on the matter, New York courts could review precedents from another jurisdiction, which would be more of a persuasive authority than a binding authority. Other factors, such as the age of the decision and the proximity of the facts, influence the authority of a particular case at common law. Judicial independence means that judges are independent of political pressure and influence in their decisions. An independent judiciary is essential to uphold the rule of law. Judges should not be influenced by political party, private interest or public opinion when asked to determine what the law requires. The independence of the judiciary from these influences ensures that everyone has a fair chance to defend their case in court and that judges are impartial in their decisions. Judges must also explain their decisions in public written statements, and their decisions can be challenged for review before a higher court. These elements of judicial decision-making ensure that judges remain accountable to the rule of law. Legal systems differ from country to country and their differences are analysed comparatively. In civil jurisdictions, a legislator or other central body codifies and consolidates the law.

In common law systems, judges enforceable jurisprudence through precedent,[11] although this may sometimes be overturned by a superior court or legislature. [12] Historically, religious law has influenced secular affairs,[13] and is still used in some religious communities. [14] [15] Sharia law, based on Islamic principles, is used as the main legal system in several countries, including Iran and Saudi Arabia. [16] [17] The most prominent economic analyst of law is the 1991 Nobel laureate, Ronald Coase, whose first major paper, The Nature of the Firm (1937), argues that the reason for the existence of firms (corporations, partnerships, etc.) is the existence of transaction costs. [230] Rational individuals negotiate through bilateral contracts in open markets until transaction costs mean that using firms to produce things is cheaper.