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SOC-CNTR.LAW
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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.