Law is a set of rules established by a society for the protection of persons and property within that group and the establishment of social order therein. Basic conventions regulating the community existed from the earliest forms of civilization and continued to progress and become more sophisticated as civilizations developed and required increasingly complex systems to ensure continued development.
In today’s world, each country has volumes of legislation enforced through the police and other authorities, and supported through interpretations and judgements of the country’s courts. Legislation can also be found in regional areas, such as those enacted by the European Union, and on a global level, through multinational agreements amongst sovereign states which then transpose the obligations emanating from such agreements into national law.
On a national level, laws are enacted by the legislative arm of government (usually Parliament/Congress, as the directly-elected representatives of the citizens) and within democratic countries such enactment follows a pre-defined process which can include public consultation.
Laws can be classified as either private or public law. Private law, as the names implies, refers to all types of law which regulate relationships between individuals, whereas public law incorporates all categories of law which deal with relationships between the state and an individual or an organisation.
In private law scenarios, regulated by civil laws, the state provides a framework for resolving and enforcing private matters between individuals/organizations, but it does not actively investigate and prosecute breaches of the law. A claim under civil law is generally of a pecuniary nature. An example of a civil claim would be one person suing another for damages caused to his car/his person after an accident occasioned by the other person’s reckless driving.
In public law scenarios, the state will directly investigate, prosecute and punish breaches of the law. One example of public law is criminal law, which involves conduct that has been rendered illegal for reasons of safety or welfare of the public. A breach of these laws is investigated and prosecuted by the police and the courts. Unlike civil penalties, criminal penalties can involve depriving the offender of their freedom through imprisonment, and/or fines. An example of a civil claim would be one in which the police prosecute a person for reckless driving which endangers another person’s safety, or in a worse scenario, causes a person’s death. The same conduct (e.g. reckless driving) can give rise to both a civil and a criminal action.
Other types of public law are constitutional law, administrative law, tax law and procedural law. Regulatory regimes that control specific sectors or specific types of conduct also exist, such as laws regulating network industries and the provision of financial services, and those created for the prevention of money laundering and abuse of personal data. A breach of the law in these cases is oftentimes not criminal in nature and thus sanctions are pecuniary and do not result in imprisonment, although some types of conduct do give rise to criminality.
A final distinction should also be drawn between the kind of law described above, often referred to as ‘positive law’, and the so-called ‘natural law’. The latter phrase has been given many different interpretations. However, it generally refers to a system of beliefs that are inherent in human nature and discoverable by reason rather than established by authority. Natural law is thus ethically binding in human society on a global scale.
While it is impossible to describe every area of law, a brief description of the main categories of law is given hereunder:
Administrative law relates to the procedures created by administrative agencies, that is, governmental bodies of the city, county, state or government. It involves rules, regulations, applications, licenses, permits, available information, hearings, appeals and decision-making.The main function of administrative law is to provide a structure within which the administration of the country can be regularly carried out. The rights of citizens follow as a natural consequence of the structure which is set up under the law.
Civil law relates to scenarios where the state provides a framework for resolving and enforcing private matters between individuals/organizations. Civil law encompasses a wide range of topics, from possession, lease and ownership of movable and immovable property (includes servitudes), to various types of contracts (including sale, mandate, surety ship), tort, damages, other obligations arising between individuals/organizations, family matters (including separation, divorce and adoption) and rules of succession.
Commercial law, considered as a sub-set of civil law, is a broad term that encompasses various aspects of the rights, relations, and conduct of persons and businesses engaged in commerce, merchandising, trade, and sales. Also referred to as business law, the term comprises instances of both private and public law, and can relate to anything from trader’s obligations to regulations for the production of goods, taxation, intellectual property, relations between traders and corporate matters.
Company law is the field of law concerning limited liability companies and other business partnerships and ranges from the incorporation thereof to rules regulating these entities, public companies and insolvency proceedings. This kind of legislation also deals with situations where the protection afforded to shareholders of a limited liability company is lifted, in a judicial process known as ‘piercing the corporate veil’.
Competition Law regulates the provision of services by undertakings, with the specific purpose of ensuring that undertakings with a dominant position within a market do not abuse of their market power, that undertakings within a market do not collude in such a way as to result in harming competition within the market, and also to ensure that anti-competitive consequences of mergers and acquisitions (concentrations) are prevented.
Though not always codified, a state’s Constitution is generally the highest law of the land, ranking supreme in the event of a conflict with other laws. It lays down the duties and powers of the government, and the duties and rights of its citizens and residents. It also defines the relationship and separation of powers of the three branches of government, namely, the executive, the legislature, and the judiciary. The Constitution thus contains the fundamental principles of the state and can also provide for matters such as national religion, language/s, anthem and flag, human rights, citizenship and public service.
A consumer is a person who makes a purchase for his personal or domestic use, rather than for his trade. A consumer is, in general, considered to be the weaker party in a transaction, and thus consumer protection law ensures that consumer has special rights (including rights of redress) and attempts to mitigate abuses practices by traders. Consumer law covers areas such as advertising, warranties, rules about consumer contracts, unfair terms, distance sales, jurisdictional matters in cross-border transactions and methods of dispute resolution. The latter generally includes specific tribunals where consumers can make complaints that will be dealt with in an economic and efficient manner.
As mentioned, criminal law relates to preventing conduct that has been rendered illegal for reasons of safety or welfare of the public. A breach of these laws is investigated and prosecuted by the police and the courts. Unlike civil penalties, criminal penalties can involve depriving the offenders of their freedom through imprisonment, and/or fines. Criminal legislation can also deal with procedure before the criminal courts and with the regulation of the police to prevent abuse of power.
The term ‘financial services’ refers to the economic services provided by the finance industry, and comprises a broad range of corporations established for the purpose of managing money. These include credit institutions, banks, electronic money institutions, credit card companies, insurance companies, accountancy companies, consumer finance companies, stock broke rages and investment funds. Legislation in this sector is an example of sector-specific regulation and tends to deal with the requirement of a licence following the necessary due diligence from the country of establishment, together with a variety of controls imposed upon the licensee to ensure consumer protection and prevention of money laundering.
Human rights are fundamental moral principles that set standards for human treatment and behavior. They are unassailable rights which any human being is inherently entitled to by reason of his humanity and are normally codified in a supreme law or in a country’s Constitution. The concept of Human rights developed in the aftermath of the Second World War and the atrocities of the Holocaust. The first step in this direction was the adoption of the Universal Declaration of Human Rights in Paris by the United Nations General Assembly in 1948, followed by the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms. This was the first legally binding treaty on international human rights, ratified in 1950, as a result of which, most countries in the world have incorporated such rights into national law. Examples of protected human rights are the rights to life, to work, to privacy, to freedom of expression, worship and movement, and protection against inhuman treatment, forced labour, discrimination, deportation and deprivation of property without compensation. These rights naturally operate with certain exceptions as prescribed by law.
Intellectual Property relates to the legal rights associated with the output of creative action or with the commercial goodwill of a company. Various types of intellectual property exist, with the most common being: copyright, performer’s rights, database rights, designs, patents, trademarks and trade secrets. A work may be protected under one or more of these forms of intellectual property in a complementary manner; however, each form has its own specificities. The common ground between all these types of intellectual property is that an intangible right is created in an original work and that right generally gives the author/owner the right to control what can or cannot be done with that work, and to charge a fee (royalty) for its use. Use of the work without the permission of the right-holder will result in an infringement.
International law is a body of law which is primarily composed of principles and rules of conduct which states commonly observe in their relations with each other. Thus, International law regulates the behaviour of sovereign independent states in their pursuance of national interests, often attempting to accommodate or balance conflicting interests. While much of international law is consent-based, there are aspects of international law that are obligatory upon state and non-state actors. International law can be categorised into public international law, which governs the relationship between states and international entities and private international law, which concerns relations across different legal jurisdictions between persons, and sometimes also companies, corporations and other legal entities
In today’s world, information technology leads the way and has become a fundamental part of everyday life. The widespread use of information and communications technologies (ICTs) have caused a move from economic value sited in physical goods to economic value sited in information, stored in a digitised form. Despite the many advantages that this brings about, new challenges have also arisen, especially insofar as the law is concerned. IT Law attempts to evaluate these new challenges and to discuss possible solutions thereto. IT Law thus discusses a broad range of matters that touch upon various aspects of the use of information technologies. Some examples of IT Law are:
IT Law also poses the question of whether national laws are legitimate, valid or enforceable in ‘cyberspace’.
Critical infrastructures need to undertake a careful balancing act between private interests and public values, economic efficiency considerations, social service obligations, and pressures for liberalization. There is a particular need to regulate monopolistic infrastructures not only through competition laws, but also with sector-specific laws that induce competition into a market that tends towards monopolization, due to the traditional government ownership of such infrastructures and the hefty costs of network roll-out. Sector-specific regulation is highly technical and is generally administered by specialized authorities set up for the purpose within a particular sector. Examples of regulated network industries are energy, water, telecommunications, post, railways, aviation, and transport).
Privacy can be defined as “the state or condition of being free from being observed or disturbed by other people”. It equates to the right to be left alone, the right of an individual to decide what to reveal about himself. As such, the right to privacy is a fundamental human right enshrined in the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms which states that “everyone has the right to respect for his private and family life”. Privacy concerns arise in a number of situations, ranging from invasive bodily procedures (e.g. genetic testing, drug testing and cavity searches), invasion of territory (including searches, video surveillance, identity checks), collection and handling of personal data and surveillance of communications. Specific laws generally deal with the situation at hand and supplement the regulation of privacy as a fundamental human right as discussed above. Within European Union data protection legislation is the primary way in which an individual’s privacy is protected.
Tax law is a body of law which prescribes the manner in which government levies income on economic transactions. Types of taxation include tax on income, capital gains and sales on consumption of products or services (such as Value Added Tax). Tax law discusses ways in which tax-beneficial structures can be created, as well as prescribing the instances when criminal tax evasion arises. Other areas of tax law deal with double taxation treaties, where states have entered into agreements to mitigate the effects of double taxation. Tax incentives in a particular sector are also given by government and their applicability forms another aspect of lax law.