THE LAW
Canon Law, a collection of ecclesiastical constitutions for the regulation of the Church of Rome, consisting for the most part of ordinances of general and provincial councils, decrees promulgated by the popes with the sanction of the cardinals, and decretal epistles and bulls of the popes.
There is also a canon law for the regulation of the Church of England, which under certain restrictions is used in ecclesiastical court. and in the courts of the two universities.
In the Roman Church these collections came into use in the 5th and 6th centuries. The chief basis of them was a translation of the decrees of the four first general councils, to which other decrees of particular synods and deoretals of the popes were added. In the time of Charlemagne the collection of Dionysius the Little acquired almost the authority of laws. Equal authority, also, was allowed to the spurious 9th-century collection of decretals falsely ascribed to Isidore, Bishop of Seville. After the 10th century systematical compendiums of ecclesiastical law began to be drawn from these canons, the most important being that of the Benedictine Gratian of Chiusi, finished in 1151. Within ten years after its appearance the the Universities of Bologna and Paris had their professors of canon law, who taught from Gratian's work, which superseded all former chronological collections. After the appearance of the Decretum Cratiani, new decrees of councils and new decretals were promulgated, which were collected by Raymond of Pennaforte under the name of Decretales Gregorii Noni (1234); and the later decretals, &c., collected by Boniface VIII., were published as the sixth book of the Gregorian Decretals in 1298, all these having the authority of laws. Pope Clement V. published a collection of his decrees in 1313. About the year 1340 the decretals of John XXII. were published (Extravagantes Johannis XXII.); and at a later period the subsequent decretals, to the time of Sextus IV. (Extravagantes Communes) appeared. These Extravagantes have not altogether the authority of law. Under Pope Pius IV. a commission was appointed to revise the Decretum Gratiani, the work being completed under Gregory XIII., and sanctioned by bull in 1580.
The authority of the canon law in England, since the Reformation, depends upon the statute 25th Henry VIII., according to which such ecclesiastical laws as were not repugnant to the laws of the realm and the king's prerogative were to remain in force till revised. This revision was never made.
A body of 141 canons was drawn up for the English church in 1603 - 04, and these are still partially in force, so far as concern the clergy .
Civil Law ( jus civile ), among the Roman the term neatly corresponding to what in modem times is implied by the phrase positive law, that is, the rules of right established by any government. They contrasted it from natural law ( jus naturale ), by which they meant a certain natural order followed by all living beings; also from the general laws of mankind established by the agreement of all nations and governments (jus gentium). With the growth and multiplication of the edicts issued by the praetors (in whose hands was the supreme administration of justice) for the modification and extension of the positive enactments a further distinction became necessary, the whole body of this praetorian law being known by the name of jus honorarium as opposed to the strict formal law (jus civile). The latter, however, included both the private law ( jus privatum ), which relates to the various legal relations of the different members of the state - the citizens - and the public law ( jus publicum ), that is, the rules respecting the limits, rights, obligations, &c., of the public authorities.
The final digest of Roman law was made in the 6th century A.D. under the Emperor Justinian, but at first was only admitted as formally binding in a small part of Italy After the 11th century, in Upper Italy, particularly in the school of Bologna, the body of the Roman law, put together by Justinian, was formed by degrees into a system applicable to the wants of all nations; and on this model the ecclesiastical and Papal decrees were arranged, and to a considerable degree the native laws of the new Teutonic states.
From all these the Roman law was distinguished under the name of civil law. In this sense, therefore, civil law means ancient Roman law ; and it is distinct from canon law and feudal law, though the feudal codes of the Lombards have been received into the corpus juris civilis, or body of civil law.
As the Roman code exerted the greatest influence on the private law of modem Europe, the expression civil law is also need to embrace all the rules relating to the private rights of citizens.
Under the term civil law, therefore, in both Europe and America, is to be understood not only the Roman law, but also the modem private law of the various countries; for example, in Germany, Das gemeine. Deutsche Privatrecht ; in France the Code civil des Francais or Code Nepoleon . In this sense it is chiefly opposed to criminal law, particularly in reference to the administration of justice, which is to be divided into civil justice and criminal justice .
Commercial Law (or the law merchant), the law which regulates commercial affairs among the merchants of different countries, or among merchants generally. It is derived from the different maritime codes of medival Europe, the imperial code of Rome, international law, and the custom of merchants.
Lord Mansfield (1704 - 93) was the first great exponent of commercial law in Britain, and a modern authority is Prof. Leone Levi, whose Commercial Law of the World led to the passing of the Acts 19 and 20 Vict. c. 60 and 97, whereby the mercantile law of the United Kingdom were made uniform in many points. Since then considerable advance has been made towards unity of commercial legislation in foreign countries.
The Common Law, in England, is the body of legal principles evolved by judges from custom and precedents of previous cases the unwritten law, that receives its binding force from immemorial usage and universal reception. It consists of that body of legal, principles, and customs which have been received from former times, and by which courts have been guided in their judicial decisions. The evidence of this law is to be found in the reports of those decisions and the records of the courts, Some of these rules may have originated in edicts or statutes which are now lost, or in the terms and conditions of particular grants or charters; but it is quite certain that many of them originated in judicial decisions founded on natural justice and equity, or on local customs. it is contrasted with (1) statute law contained in Acts of Parliament, wherever statute law, however, runs counter to common law, the latter entirely overruled; but common law, on the other hand asserts its pre-eminence where equity is opposed to it. (2) The term is used also to distinguish it from equity i.e. legal principles developed originally by the lord chancellor to mitigate hardship caused by the rigid application of Common Law, which first appeared when the common law had reached its full growth; and (3) the civil inherited by modern Europe from the Roman Empire. Common Law matters such as actions in contract or tort are tried by the queen's bench, while equity cases, e.g. trusts and construction of wills, are dealt with by the chancay div. of the High Court.
Criminal Law, the law relating to crimes. The general theory of the common law is, that all wrongs are divisible into two main categories :-
| First | civil or private wrongs or torts |
| redressed by private suits or remedies instituted by the parties injured. |
The general description of the private wrongs is, that they comprehend those injuries which, affect the rights and property of the individual, and terminate there;
| Secondly | criminal or public wrongs. |
| redressed by the state acting in its sovereign capacity. |
In the first, therefore, so far as the law is concerned, the compensation of the individual whose rights have been infringed is held to he a sufficient atonement; but in the second class of offences it is demanded that the offender make satisfaction to the community as acting prejudicially to its welfare.
The exact boundaries between these classes are not, however, always easy to be discerned, even in theory; for there are few private wrongs which do not exert an influence beyond the individual whom they directly injure. The divisions, torts and crimes, are thus not necessarily mutually exclusive, cases sometimes occurring in which the person injured obtains damages, while at the same time the criminal is subjected to punishment, not as against the individual, but as against the state.
It is, moreover, obvious that legal criminality is not in any strict sense the measure of the morality of actions, though the legal enactment tends to enforce itself as a moral law. It is only an approximate expression of the current sense of justice, this expression being both aided and hindered by the historical and constantly reflexive character of legal method .
The basis of the criminal law of Great Britain is to be found in a series of loose definitions and descriptions, of which many, and those among the more important, date from the 13th century. The irregular superstructure reared upon these consists mainly of parliamentary enactments which originated in the 18th century, but have been twice reenacted in the 19th century - the first time between 1826 and 1832, and the second time in 1861, with an intermediary attempt at amendment in 1837. The laws as formulated, however, by no means always represent the law as interpreted, the whole system being further complicated by a mass of judicial comments and particular constructions .
Thus while there is a statutory division of crimes into treasons, felonies, and misdemeanours, the distinctions between them are so uncertain that it is possible to regard the first head as merely the isolation of a sub-case of felony; while in respect of the second and third classes, the distinction can only be clearly marked by an enumeration of the crimes arbitrarily assigned to each in the common law and judges' decisions. Even in severity of punishment a misdemeanour may rank as high as a felony.
The Criminal Statutes Consolidation Acts - the result of a series of commissions extending over thirty years - accomplished little more in the way of systematization than the introduction of greater exactitude into the definition of certain individual offences amid the gradation of penalties.
The aim of criminal law as at present constituted is both retributive and preventive - in its former aspect being based upon the primitive passion of retaliation, in the latter primarily upon the fundamental instinct of self-preservation, The prevention of crime may, however, be effected in a threefold manner: by imposing a penalty which shall operate by fear to deter men from committing crimes, or by rendering it physically impossible for a man of know, criminal tendency to repeat an offence or by the reformation of the criminal .
The principle of retaliation has fallen into theoretic disrepute, though still a practical legal factor; and the problems of penology are made to turn almost exclusively upon the principle of prevention in these three aspects, and especially on the two last. The discovery that fear of a penalty only operated up to a certain point beyond which an excessive punishment exercised a brutalizing tendency, has led to a large mitigation of penal severity accompanied by a wide desire for the abolition of capital punishment; while, on the other hand, various schemes have been devised for making punishment reformatory.
