Shareware Overload Trio 2/Shareware Overload Trio Volume 2 (Chestnut CD-ROM).ISO/dir33/1798_r.zip/SOC-CNTR.LAW

Text File | 1993-12-26 | 28KB | 486 lines

                              SOCIAL CONTRACT

     The social-contract theory concerns the origin of organized
     society, holding that the state originally was created through
     a voluntary agreement entered into among individuals living in
     an anarchical state of nature. This contract defines and
     regulates the relations among the members of society and
     between the individual and the governing authority. The
     social-contract theory challenged the DIVINE RIGHT of kings as
     the basis for a state's legitimacy and laid the foundation for
     theories of constitutional government.

     The most influential proponents of social-contract theory were
     the English philosophers Thomas HOBBES and John LOCKE and the
     French philosopher Jean Jacques ROUSSEAU. According to Hobbes,
     the individual's natural right to self-government was
     surrendered by means of the social contract to an absolute
     ruler. Locke held that the state was brought into being to
     protect the "natural rights" of the citizen to life, liberty,
     and property. These rights, however, remain with the
     individual. According to Locke, citizens are entitled to resist
     or rebel if the state abrogates the original contract by not
     protecting these rights. Rousseau extended the concept of
     rights to encompass all the people and not the narrow
     propertied class of citizens included by Locke. In Rousseau's
     state, political authority reflects the "general will" of the
     people.

          Politics, or the Science of the State, is the Corporate
     Unity of the many bound together in society. This incorporate
     being we call the State, the Nation, the Body-politic. This
     organism in unity is associated by jural bond for the objects
     of the social state in which is vested all rightful political
     power over its members for the common good. This rightful
     political power so vested we call Sovereignty over men and
     things. Note the two qualifying words as to the political power
     of the Body-politic; vested indicates where the power is
     derived from, rightful is a limitation of this sovereignty.

          What is the proper relationship of the Individual to the
     Body-politic? Man-right in Society is not derived from, nor
     secured by, and contract between men. Such contracts of men
     already in social union have been formed, and constitutions and
     governments have been established by quasi agreements after
     Society has long existed; but men have never, when out of
     Society, entered into it by any compact or agreement. Upon the
     institutions of the Body-politic, as un fait accompli, men have
     engrafted a formal constitution, which by consent express, or
     implied from acquiescence, is recognized as based on their
     consent.

          All political power is inherent in the people, and
     governments derive their just powers from the consent of the
     governed, and are established to protect and maintain
     individual rights, and instituted for their peace, safety and
     happiness; for the advancement of these ends they have at all
     times an unalienable right to alter, reform or abolish the
     government in such manner as they may think proper.

          The first and primary end of human laws is to maintain and
     regulate the absolute rights of the individual. The principle
     aim of society is to protect individuals in the enjoyment of
     those absolute rights, which were vested in them by the Divine
     Being. Each is gifted with faculties, which are his
     exclusively, to which a duty is annexed in their use with a
     responsibility to the Giver of them. In order to perform this
     trust duty, the individual's use and direction of his powers
     must be by his own free will, because it is a sole and
     exclusive responsibility. The endowments are not equal, but
     diverse; but the duty of each, the trust imposed upon, and the
     responsibility exacted from each, are equal and exclusive. The
     gifts are unequal but the right of each to his endowments is
     equal to that of every other being because each holds his right
     under equal and exclusive trust to his Creator.

          Each man's title to these endowments is absolute between
     himself and his God and held in trust against all intrusive
     control by any other man. How can any man interfere with the
     exclusive right of another to meet his sole responsibility to
     the Divine Being? How can we lawfully control another in
     discharging his duty to his Creator? He must resist this
     attempt because only in freedom of action can he fulfill is
     Divinely appointed mission. His defense of this personal
     liberty is not a mere right he may waive, but an imperative
     duty he must perform.

          This exclusive, natural right of each man to self-use
     comprehensively means Liberty. This exclusive use of the Divine
     gifts to him therefore does not come through any social compact
     of men, or as a gift from society or from government. It is
     liberty of self-use, in-a-lien-able by himself because that
     would be breach of duty and surrender of the trust Divinely
     vested; and in-a-lien- able by any and all others. Voluntary
     surrender is personal treason to this trust, and to deprive him
     of it is to rob the Creator's right to him.

          Among these in-a-lien-able rights are life, liberty, and
     property. Life, Liberty, and property do not exist because men
     have made laws. To the contrary, it was the fact that life,
     liberty, and property existed beforehand that cause men to make
     laws in the first place. This natural liberty consists properly
     in a power of acting as one thinks fit, without any restraint
     or control, as long as it does not infringe upon the free-will
     of the other members of Society.

          The Body-politic is the means Divinely ordained to secure
     the inalienable rights of men, and is only legitimate when it
     promotes and is not destructive of these ends. This fixes man's
     true relationship with the Body-politic. Government was made
     for his good. Man was not made for its benefit. Men can never
     be jurally deprived of their essential, natural and absolute
     liberties by the power of government.

          Sovereignty is the essence of power from which flow
     emanations of powers. Sovereignty is the dynamo--
     the motor force in all civilized polity. Its emanations in
     exercise of powers by its foreign agents. We must not confuse
     this essence of power with its emanations. Sovereignty as
     essence, is one, indivisible, ungrantable, undistributable and
     always reserved; governmental powers, as emanations of this
     essence, may be granted distributed, divided or reserved. This
     important distinction between sovereignties and governmental
     powers, the one as the essence, the other as emanations
     therefrom, will not find recognition in British writers prior
     to the 17th century, or as such in Blackstone in the 18th
     century.

          It follows from this relation between the Body-politic in
     its constitution making power and the government in the
     ordinary exercise of political powers -- the first holding
     original authority, and the latter only derivation-- that when
     the government exercises powers which the constitution allows,
     its action has the full force of the sovereign will; but when
     the government does what the constitution doe not allow, the
     action of the government is ultra vires and void.

                                NATURAL LAW

     Natural law is the concept of a body of moral principles--a
     system of justice--that is common to all humankind and, as
     generally posited, is recognizable by human reason alone.
     Natural law is therefore distinguished from--and provides a
     standard for--positive law, the formal legal enactments of a
     particular society. Derived from the natural-law concept is the
     theory that individuals have inalienable natural rights, as
     stated in the U.S. Declaration of Independence.

     The concept of natural law has taken several forms. The idea
     originated in the ancient Greeks' conception of a universe
     governed in every particular by an eternal, immutable law and
     in their distinction between what is just by nature and just by
     convention.

     Stoicism provided the most complete classical formulation of
     natural law. The Stoics argued that the universe is governed by
     LOGOS, or rational principle; they further argued that all
     humans have logos (reason) within them and can therefore know
     and obey its law. Because humans have the faculty of choice,
     they will not necessarily obey the law; if they act in
     accordance with reason, however, they will be "following
     nature."

     Christian philosophers readily adapted Stoic natural-law
     theory, identifying natural law with the law of God. Natural
     law can be that part of the eternal law of God ("the reason of
     divine wisdom") which is knowable by humans by means of their
     powers of reason. Human, or positive, law is the application of
     natural law to particular social circumstances. Human law that
     violates natural law is not true law.

     With the secularization of society resulting from the
     Renaissance and Reformation, natural-law theory found a new
     basis in human reason. The 17th-century Dutch jurist Hugo
     Grotius believed that humans by nature are not only reasonable
     but social. Thus the rules that are natural to them--those
     dictated by reason alone (whether God exists or not)--are those
     which enable them to live in harmony with each other. From this
     argument Grotius developed the first comprehensive theory of
     international law. Another 17th-century philosopher, Thomas
     Hobbes, modified the natural-law tradition in arguing that
     there is no justice in nature. Humans are by nature selfish and
     aggressive, but self-interest--the need for
     self-preservation--guides them to enter into a Social Contract
     by which they surrender their freedom of action to an absolute
     authority (see STATE, in political philosophy).

     Although accepting the idea that self-preservation is the
     rational key to human behavior, most philosophers of the period
     took a more optimistic view of human nature. John Locke argued
     that humans in the state of nature are free and equal, yet
     insecure in their freedom. When they enter society they
     surrender only such rights as are necessary for their security
     and for the common good. Each individual retains fundamental
     prerogatives drawn from natural law relating to the integrity
     of person and property. This natural-rights theory provided a
     philosophical basis for both the American and French
     revolutions.

     During the 19th century natural-law theory lost influence as
     utilitarianism and Benthamism, positivism, materialism, and the
     historical school of jurisprudence gained ascendancy. In the
     20th century, however, it received new attention, partly in
     reaction to totalitarianism. Because the content and
     implications of natural law are not entirely determinate and
     unequivocal, it has been appealed to in support of many
     apparently conflicting ends and ideals. Critics have taken this
     ambiguity as a defect; supporters call it flexibility and a
     virtue. Such problems have led some recent supporters to speak
     of "natural law with changing content" and to think of natural
     law as a fixed ideal of justice applicable in differing ways to
     different situations.

     Law can be defined broadly as a system of standards and rules
     of civil society: standards of human conduct that impose
     obligations and grant corresponding rights, and institutional
     rules regarding the ascertainment, creation, modification, and
     enforcement of these standards. The question "What is law?" has
     elicited a myriad of answers throughout human history, ranging
     from the Old Testament's assertion of law as the will of God to
     the thesis of Karl MARX and Friedrich ENGELS that law is an
     expression of class ideology.

     CONCEPTIONS OF LAW

     Notwithstanding the marked historical diversity in conceptions
     of law, many if not most of the conceptions of law can be
     placed in one of six broad categories: natural law, legal
     positivism, historical jurisprudence, sociological
     jurisprudence, Marxism, and legal realism.

     Like Western philosophy in general, philosophy of law in
     particular first emerged in ancient Greece. In the 5th century
     BC the SOPHISTS and SOCRATES, along with his followers, took up
     the question of the nature of law. Both recognized a
     distinction between things that exist by nature (physic) and
     those that exist by human-made convention (nomos). The
     Sophists, however, tended to place law in the latter category,
     whereas Socrates put it in the former, as did PLATO and
     ARISTOTLE.

     Thus began the debate that continues even today over whether
     the essence of law is nature and reason on the one hand or
     convention and will on the other hand. Thinkers who believe the
     former belong to what can be loosely called the tradition of
     NATURAL LAW, and those who assert the latter belong to the
     tradition of legal positivism.

                     NATURAL LAW AND LEGAL POSITIVISM

     All of the early political philosophers were deeply concerned
     with the nature of justice and good government. The idea of
     natural law can be found in Plato's concept of the just
     state--governed by the good and the wise--which in his view
     reflects the naturally hierarchical structure of human society.
     Governed by wisdom, the ideal state has no need of conventional
     law because wisdom itself is the recognition of the primacy of
     natural order. Aristotle made a distinction, however, between
     paramount natural law that establishes general precepts and
     human-made law that merely imposes sanctions for violations of
     those precepts. Marcus Tullius CICERO, a Roman statesman and
     politician who was also a Stoic (see STOICISM) legal
     philosopher, put forward the first full-blown theory of natural
     law, in his Commonwealth (51 BC): "True law is right reason in
     accord with nature; it is of universal application, unchanging
     and everlasting...."

     Later, Saint AUGUSTINE combined Stoic legal thinking with
     Christian philosophy by identifying eternal, divine law with
     God's reason and will and by considering human law as being
     derived from and limited by divine law. The natural-law
     tradition culminated in the theory of Saint Thomas AQUINAS,
     which synthesized Aristotelian, Stoic, ROMAN LAW, and Christian
     elements. Aquinas formulated a fourfold classification of types
     of law: (1) eternal law--God's plan for the universe; (2)
     natural law--that part of the eternal law in which humans
     participate by their reason; (3) divine law--God's direct
     revelation to humankind through the scriptures; and (4) human
     law--particular determinations of certain matters arrived at
     through the use of reason from the general precepts of the
     natural law. Aquinas also argued--as Cicero had done--that an
     unjust law was not a genuine law but rather an act of violence.
     Later thinkers who may be placed in the natural-law tradition
     include Hugo GROTIUS, Thomas HOOKER, Gottfried LEIBNIZ, Baruch
     SPINOZA, Jean Jacques ROUSSEAU, and Jacques MARITAIN.

     In marked contrast to natural-law jurists, legal positivists
     such as Thomas HOBBES argued that the essence of law is the
     command or will of the sovereign and that an "unjust law" is a
     contradiction in terms because the existing law is itself the
     standard of justice. Jean BODIN had anticipated Hobbes in the
     former respect when he claimed that "law is nothing else than
     the command of the sovereign in his exercise of sovereign
     power." Bodin had added, however, that the prince "has no power
     to exceed the law of nature," and he expected natural law to be
     found in constitutional restraints. Thus Bodin had not broken
     unequivocally from the natural-law tradition. John LOCKE's
     criticism of Hobbesian theory set the stage for modern theories
     of CIVIL DISOBEDIENCE and for independent government in the
     American colonies.

     Many legal positivists after Hobbes have backed down from his
     extreme claims. For example, Jeremy BENTHAM and John AUSTIN
     agreed that law was the command of the sovereign but rejected
     the idea that law was necessarily the standard of justice or
     morality. Bentham was more interested in the law's utility in
     providing the greatest happiness for the greatest number. Hans
     Kelsen (1881-1973) and the English legal philosopher H. L. A.
     Hart repudiated the command theory of law, arguing respectively
     that laws are essentially derived from norms for the creation
     of law and rules that arise from society. Nonetheless the
     central point of contention between natural-law jurists and
     legal positivists remains the same: the former insist on a
     necessary connection between legal validity and moral value,
     whereas the latter hold that no such connection is necessary.
     As Hart put it in The Concept of Law (1961), natural law
     jurists hold that "there are certain principles of human
     conduct, awaiting discovery by human reason, with which
     man-made law must conform if it is to be valid," whereas legal
     positivists contend that "it is in no sense a necessary truth
     that laws reproduce or satisfy certain demands of morality
     though in fact they have often done so."

     Historical Jurisprudence

     In contrast with both natural-law jurists and legal
     positivists, members of the historical school of jurisprudence,
     most notably Friedrich Karl von SAVIGNY, maintained that "an
     organic connection {exists} between law and the nature and
     character of a people." In his view legislation is relatively
     unimportant except insofar as it declares customary law, which
     is the truly living law. Thus the spirit of the people and not
     the commands of the sovereign or right reason in accord with
     nature constitutes the essence of law. Other important
     juridical historians include Otto Friedrich von GIERKE, Sir
     Henry MAINE, and Frederick William MAITLAND. MONTESQUIEU may
     also be placed in this school, although he preceded it in time.

     Sociological Jurisprudence

     Akin to historical jurisprudence is sociological jurisprudence,
     which can be traced to the writings of Rudolf von Jhering
     (1818-92). He rejected Savigny's theory on the ground that the
     latter, in viewing law as a spontaneous expression of
     subconscious forces, overlooked the importance of conscious
     human purposes and the pursuit of interests embodied in the
     law. Jhering also emphasized that law must be understood in the
     context of social life. He thus foreshadowed the
     jurisprudence-of-interests school of thought and sociological
     jurisprudence. Both strains of Jhering's thought influenced the
     jurisprudential theory of Roscoe POUND and other American
     sociological jurists, who focused on the notion of "social
     engineering" law as a means of social control and the
     relationship between law and society.

     Types of Law

     Traditionally, law has been divided into public law and private
     law. Public and private laws that set forth the substance of
     rights and obligations are sometimes called substantive law in
     order to distinguish them from LEGAL PROCEDURE; the latter
     specifies the methods to be followed in adjudicating
     substantive law cases in order to ensure they are conducted in
     a manner protective of the rights of the participants. If
     procedural law relates to how the rights and duties of
     substantive law are to be vindicated and enforced, substantive
     law pertains to what the law is on a given matter.

     Public Law

     Public law concerns the structures, powers, and operations of a
     government, the rights and duties of citizens in relation to
     the government, and the relationships among nations. It can be
     divided further into constitutional law, ADMINISTRATIVE LAW,
     CRIMINAL LAW, and INTERNATIONAL LAW.

     Constitutional law, the fundamental or paramount law of a
     nation, is derived from the nation's CONSTITUTION, which
     comprehends the body of rules in accordance with which the
     powers of government are exercised. Constitutions may be either
     written or unwritten--America's is an example of the former,
     England's of the latter. In some nations, courts have the power
     of JUDICIAL REVIEW, whereby they declare unconstitutional and
     therefore void laws that contravene the provisions or
     arrangements of the constitution. Administrative law includes
     laws governing the organization and operation of agencies of
     the executive branch of government, the substantive and
     procedural rules that these agencies formulate and apply
     pursuant to their regulatory and other administrative
     functions, and COURT decisions involving public agencies and
     private citizens.

                               CRIMINAL LAW

     Criminal law consists of laws that impose obligations to do or
     forbear from doing certain things, the infraction of which is
     considered to be an offense not merely against the immediate
     victim but also against society. Most such laws are backed up
     by sanctions or punishments, which are applied in the event of
     conviction. Major breaches of the criminal law, usually defined
     as those punishable by imprisonment for more than 1 year, are
     termed FELONIES. Less serious crimes, called MISDEMEANORS, are
     punishable by imprisonment for a shorter period or by fines or
     both. Finally, international law concerns the relationships
     among nations, including the use of the high seas,
     INTERNATIONAL TRADE, boundary disputes, warfare methods, and
     the like. Some legal theorists question whether international
     law is genuine law because it lacks an international
     legislature, centrally organized sanctions, and courts with
     involuntary jurisdiction, all of which characterize national
     legal systems.

     Private Law

     Unlike public law, private law does not involve government
     directly but rather indirectly as an adjudicator between
     disputing parties. Private law provides rules to be applied
     when one person claims that another has injured his or her
     person, property, or reputation or has failed to carry out a
     valid legal obligation. Private law also includes laws that
     confer powers or capabilities to create structures of
     obligations and rights on individuals who wish to achieve given
     legal objectives. On the basis of the types of legal rights and
     obligations involved, private law is conventionally subdivided
     into six main categories: (1) TORT law; (2) PROPERTY law; (3)
     CONTRACT and BUSINESS LAW; (4) CORPORATION law; (5) inheritance
     law (see WILL, law); and (6) family law.

     Sources of Law

     Laws can also be subdivided on the basis of the sources of law
     from which they derive. The various legal systems of the world
     recognize as valid and therefore binding on their subjects some
     or all of the following major sources: constitutions and
     administrative rules, such as those described above;
     legislative statutes; judicial precedents; and customary
     practice. Although when a person thinks of law, the concept of
     statutes comes most readily to mind, statutes are now
     outnumbered by the innumerable administrative rules and
     regulations that have accompanied the growth of administrative
     government in modern times. Judicial precedents (also known as
     case law), which are recognized as valid law that later courts
     must follow in COMMON LAW but not in CIVIL LAW systems, are
     prior cases decided by courts. Finally, customary practice is a
     minor source of law in the legal systems of advanced industrial
     nations, but it is the primary if not the only source in
     primitive legal systems and is inextricably linked with
     kinship, taboo, religion, and traditional authority systems.

     LAWYERS

     The requirements for becoming a lawyer in the United States are
     set by each state and the District of Columbia. In general, an
     individual must earn a bachelor's degree and then attend a
     recognized law school for either 3 years as a full-time day
     student or 4 years as a part-time evening student. Law schools
     grant the juris doctor (J.D.) degree, and many also offer a
     master of laws (LL.M.) program. Some also offer a doctoral
     program leading to the degree of doctor of the science of
     jurisprudence (J.S.D.). The basic J.D. degree is sufficient for
     either law practice, law teaching, or the judiciary. In order
     to become an ATTORNEY the individual must also pass the state's
     bar examination. A person who wishes to work in the law but
     does not wish to pursue the program leading to a law degree may
     train to be a paralegal assistant to lawyers (see PARALEGAL
     SERVICES). Various schools have been set up in recent years to
     train such persons. Most lawyers are in private practice. In
     larger centers of population they tend to form partnerships
     that may range from two to hundreds of members. Because the law
     touches on all aspects of life, the work of lawyers is of
     infinite variety. Most lawyers specialize in a field such as
     tax law, estate planning, corporate law, workers compensation
     law, and so forth. Some lawyers specialize in trial work. Many
     work for federal, state, or local government or for
     administrative agencies. Some lawyers are employed by business
     firms; the legal department of a large corporation or bank may
     include dozens of lawyers.

     In England legal representation is divided between solicitors,
     or attorneys, and barristers. A client goes to a solicitor, who
     drafts legal documents, advises, and handles matters that can
     be settled out of court or in lower courts. If a case must go
     to a higher court the solicitor employs a barrister, who is
     permitted to plead in superior courts. In these cases the
     solicitor and barrister form a legal team.