JORGE RODRIGUES SIMÃO

ADVOCACI NASCUNT, UR JUDICES SIUNT

(7) Law

 Family Law

International Court of Justice

International Public Law

Environment Law - Environmental and Natural Resources Law

Corporate Law (corporations law, company law)

Criminal Law

Constitutional Law

Administrative Law

Real Estate Law

law

Criminal law

Crime is irresistible - and not only to criminals. It is the stuff of popular culture. Think of the numerous - mostly American - movies such as The Godfather, Taxi Driver, Pulp Fiction, Scarface, Reservoir Dogs, and countless others, or the many popular television series portraying various aspects of crime and its detection, including Law and Order, NYPD Blue, Hill Street Blues, The Sopranos, to name only a few. We seem to revel in observing the criminal process unfold.

Typically the criminal law punishes serious forms of antisocial behaviour: murder, theft, rape, blackmail, robbery, assault, and battery. Yet governments deploy the law to criminalize a host of minor forms of misbehaviour relating, in particular, to health and safety. These ‘regulatory offences’ occupy a sizeable proportion of modern criminal law. As with the law of tort, the concept of fault is central to the criminal law. Broadly speaking, most countries proscribe conduct that generates insecurity, causes offence, and harms the efficient operation of the government, the economy, or society in general.

Virtually every system of criminal law requires evidence of fault - intention or negligence – to convict a person of an offence. So, for example, the American Model Penal Code defines a crime as ‘conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests’.

Criminal liability thus has three basic components: conduct, without justification and without excuse. To amount to a crime, ‘conduct’ must inflict or threaten substantial harm to individual or public interests. In sum, therefore, criminal liability requires a person to engage in conduct that inflicts or threatens substantial harm to individual or public interests without justification and without excuse.

The criterion of ‘harm’ will differ according to the social and political values of each society, but all agree that conduct that impairs the security of the community or hurts the physical well-being or welfare of its members constitutes ‘harm’.

Criminal responsibility normally entails the presence of a guilty act (the ‘actus reus’) as well as a guilty mind (‘mens rea’). But these prerequisites will not ineluctably condemn the accused, for he may have one of several defences to excuse his otherwise criminal behaviour. Suppose I am attacked by a knife-wielding robber, and in the affray that ensues I slay my assailant. Provided I use ‘reasonable force’ to defend myself, I am entitled to a complete acquittal. The defence is, however, unlikely to excuse me killing to defend my property. Other defences include duress (where, for example, I am forced at the point of a gun to commit a crime), mistake (I genuinely believed the umbrella I took was mine), incapacity (the defendant is a child, too young to form the requisite mens rea), provocation, and insanity.

The traditional offences mentioned above are everywhere crimes, albeit they are met with varying degrees of severity or form of punishment. In addition, society cannot tolerate attacks upon its own survival; treason, terrorism, and public disorder are therefore generally criminalized. Nor is the criminal law confined to these extreme assaults on the community; conduct that offends may attract the attention of the law where the affront or nuisance is sufficient: public nudity, excessive noise or odours, and prostitution are examples of conduct that may cross the threshold.

And there is a tendency for criminal law to be utilized in pursuit of paternalistic ends. Think, for example, of laws requiring the wearing of seat belts or crash helmets, or the legislation of most countries prohibiting the possession of drugs. The ostensible purpose of these laws is to protect individuals against their own folly or fragility.

The common law requires that in order to convict the defendant his guilt must be proved ‘beyond reasonable doubt’. Civil cases (such as an action for breach of contract or a tortious action for damages) relax the burden to one of ‘a balance of probabilities’.

The situation in respect of criminal trials in civilian legal systems is broadly the same, though the so-called ‘inquisitorial’ system obtaining in Continental Europe and other civil jurisdictions is often misunderstood, and the differences exaggerated. As in tort, liability in the criminal law is occasionally strict, i.e., there are offences that can be committed without mens rea. Similarly, the rationale for this abandonment of fault is the protection of public welfare, for example, where a factory is held responsible for industrial pollution – despite the absence of negligence.

The prosecution must, of course, prove that the defendant did actually commit the offence with which he has been charged. Suppose we have a fight and I hit you on the head with a blunt instrument. You are rushed to hospital, where you are administered a drug that kills you. Am I guilty of your murder?

Did I cause your death? Were it not for the wound I inflicted, you would not have been in the hospital that negligently administered the incorrect medication. But it is doubtful that any legal system would hold me responsible for your death.

Murder in most countries requires proof of the intention to kill (‘malice aforethought’ in the common law). Legal systems attempt, in a variety of ways, to classify homicide on the basis of the mental element involved. So, for example, the United States and Canada tend to distinguish between different types of killing that constitute murder. Thus, according to the Canadian Criminal Code, first-degree murder is the intentional, premeditated killing of another person or in the furtherance of another serious criminal offence such as robbery. Second-degree murder is the intentional killing of another person without premeditation (i.e. killing in the heat of the moment). Thirdly, there is manslaughter, which is the killing of another person when there is no intent to kill. Fourth is infanticide – the killing of an infant while the mother is still recovering from the birth.

While liability for intentional killing is relatively uncontroversial, death caused by negligence is less straightforward, and the laws of various jurisdictions adopt different solutions to what is generally regarded as something of a quandary. Some require that the defendant must have known - subjectively - that his act may kill someone and that he nevertheless proceeds recklessly despite the risk. For example, I have been admonished never to point a loaded weapon at anyone. I ignore the warning, and the rifle I point towards you fires and you are killed. Other jurisdictions lack this prerequisite of knowledge and impose liability for negligent killing where the defendant acts with gross negligence. Still others require only ordinary negligence.

One of the primary functions of the criminal law is to authorize the punishment of convicted offenders. This may be justified on any of a number of (often competing) grounds.

First, punishment is thought, sometimes correctly, to act as a deterrent both to the convict and to others. Few criminals, however, imagine they will be apprehended; the effectiveness of deterrence is thus questionable. Second, there are those who believe that through punishment, especially imprisonment, the offender will come to see the error of his ways and emerge a reformed individual. Unhappily, the evidence in support of this benevolent attitude is meagre. It is argued, third, that the real purpose of punishment is retribution or desert: making the wrongdoer suffer for his crime: ‘an eye for an eye …’ An extreme example is Islamic Sharia law, under which, according to most interpretations, the punishment for serious theft is the amputation of hands or feet (though for first offenders only one hand is cut off).

The state, by assuming responsibility for chastising the criminal, reduces the risk of victims of crime ‘taking the law into their own hands’. Fourth, by locking up an offender, he is removed from society, thereby protecting the rest of us. Finally, especially in the case of minor offences, the criminal may be required to make amends through ‘community service’. This form of punishment is then justified as a form of ‘restorative justice’.

 

Property

 

Ownership is at the epicentre of social organization. The manner n which the law defines and protects this exclusive right is an important marker of the nature of society. And the law always has something to say on this subject, whether it is to confer absolute rights of private property, recognize collective rights, or adopt a position in between. Specifically, the law of property determines, first, what counts as ‘property’; second, when a person acquires an exclusive right to a thing; and, third, the manner in which it protects this right.

To the first question there is general agreement that property includes land, buildings, and goods. The common law distinguishes between real property (land as distinct from personal or movable possessions) and personal property. Civil law systems distinguish between movable and immovable property. The former corresponds roughly to personal property, while immovable property corresponds to real property. But property is what the law declares it to be: a ten dollar bill is a piece of paper with no intrinsic value; the law imparts value to it. In a similar fashion, the law may create property, as it does in the case of intellectual property (which includes copyright). The owner of the copyright of any book has a monopoly of various rights over its copying and reproduction.

The second issue, who is the owner, is generally determined by discovering who has the strongest long-term right to control the thing in question. And this right will normally include the right to transfer ownership to another. In the case of land, however, I may not know whether the seller is the legal owner. Most legal systems therefore have some form of public land registration which enables prospective buyers to establish who the genuine owner is.

Third, the law may be called upon to settle a contest between the owner and the possessor of a thing. The former is, as we have seen, the person with the strongest long-term claim to the possession of a thing. But suppose I rent my villa to you for a year. You currently possess the property, and while I have an ultimate right to possess

it, some legal systems favour the right of the tenant (at least for the duration of the lease) over the owner; others prefer the owner.

A significant branch of property law is the law of trusts, which developed out of the division in England between common law and equity. In the 14th century, dissatisfaction with the rigidity, corruption, and formalism of the common law led losing parties to petition the king to compel the other party to observe moral - rather than strictly legal - principles. The king conveyed these petitions to the chancellor, the chief administrative official, who, in time, came to adopt judicial powers, and the idea of equity was born. The inexorable conflict between the strict application of the law, on the one hand, and the principles of justice and morality, was well understood by Shakespeare who, in Act IV Scene 1 of The Merchant of Venice, has Portia declare:

 

The quality of mercy is not strained

It drop peth as the gentle rain from heaven

Upon the place beneath. It is twice blest;

It blesseth him that gives and him that takes.

‘Tis mightiest in the mightiest; it becomes

The thronèd monarch better than his crown.

 

Among the concepts to emerge from this equitable jurisdiction was the convenient institution of the trust, which is an arrangement by which a ‘settlor’ transfers property to one or more trustees who hold it for the benefit of one or more beneficiaries who have the right to enforce the trust in court.

Equity, rooted in conscience, spawned also a number of important remedies, including the injunction. This enables a person to prevent in advance the commission of a legal wrong. For example, if I learn that you are about to publish an article defamatory of me, I may, in several jurisdictions, obtain an urgent injunction to stop you from doing so. Another equitable remedy is ‘specific performance’. The common law allowed only the award of damages for breach of contract, but often the plaintiff seeks the performance of the contract rather than compensation. Since the 19th century, equity is applied in the same courts as the common law, and though the division between the two bodies of law lingers, equity has lost its mission as the ‘compassionate female’ in contrast to the common law’s position as the ‘inflexible male’.

 

The Dickensian Court of Chancery

 

This is the Court of Chancery, which has its decaying houses and its blighted lands in every shire, which has its worn-out lunatic in every madhouse and its dead in every churchyard, which has its ruined suitor with his slipshod heels and threadbare dress borrowing and begging through the round of every man’s acquaintance, which gives to monied might the means abundantly of wearying out the right, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give – who does not often give - the warning, ‘Suffer any wrong that can be done you rather than come here!’

Charles Dickens, Bleak House, Chapter I

 

Constitutional and administrative law

 

Whether or not it is in written form, every country has a constitution that specifies the composition and functions of the organs of government, and regulates the relationship between individuals and the state. Constitutional law analyses the extent to which the functions of government are distributed between the legislative, executive, and judicial branches of government: the’ separation of powers’. Many constitutions incorporate a bill of rights that constrains the exercise of the power of government by conferring individual rights and freedoms on citizens. Such rights typically include freedom of speech, conscience, religion, the right of peaceful assembly, freedom of association, the right of privacy, equality before and equal protection of law, the right to life, the right to marry and found a family, freedom of movement, and the rights of persons charged with or convicted of a criminal offence.

Administrative law governs the exercise of the powers and duties by public officials. In particular, it concerns the control of such powers by the courts who, in many jurisdictions, increasingly engage in reviewing the exercise of legislation and administrative action. This has occurred largely as a consequence of the dramatic expansion over the last 50 years in the number of government agencies that regulate vast tracts of our social and economic lives. It concerns also the review of decisions made by so-called ‘quasi-judicial’ bodies, like professional disciplinary committees that affect the legal rights of their members. Their rulings are susceptible to ‘judicial review’ to determine whether they have acted reasonably.

The precise standard of reasonableness to be applied by the court differs in various common law jurisdictions. In the United States, for example, the court asks whether the body’s decision was ‘arbitrary or capricious’ before deciding whether to strike it down.

The Canadian test is one of ‘patent unreasonableness’, while the Supreme Court of India deploys criteria of proportionality and legitimate expectation. English law adopts the standard known as ‘Wednesbury unreasonableness’ (after a case of this name, in which it was held that a decision would be set aside if it ‘is so unreasonable that no reasonable authority could ever have come to it’).

In France, the Conseil Constitutionel exercises exclusive judicial oversight, including in respect of legislation that fails to attract sufficient parliamentary support. It has the - unappealable - power to nullify the contested bill. The supreme courts (Conseil d’état and Cour de Cassation) seek to interpret the law in a manner consistent with the Constitution.

French administrative law recognizes certain ‘principes à valeur constitutionnelle’ (principles of constitutional value), including human dignity, with which the executive must comply, even in the absence of specific legislative provisions to that effect. The German constitution (the Basic Law) guarantees judicial review as a check on the tyranny of the majority.

Several civil law countries have special administrative courts. Difficulties tend to arise in respect of determining whether a matter is one for these courts or belongs more properly in the ordinary courts. In France, for example, a special Tribunal of Conflicts decides where the matter should be heard, while in Germany the court in which the case is first pleaded determines whether it has jurisdiction and may transfer cases over which it denies jurisdiction. In Italy, the Court of Cassation is the ultimate authority when such conflicts arise.

 

Other branches

 

Family law relates to marriage (and its contemporary equivalents), divorce, children, child support, adoption, custody, guardianship, surrogacy, and domestic violence.

Public international law seeks to regulate the relations between sovereign states. These norms are generated by treaties and international agreements (such as the Geneva Conventions), the United Nations, and other international organizations, including the International Labour Organization, UNESCO, the World Trade Organization, and the International Monetary Fund.

The International Court of Justice (sometimes called the World Court), based in The Hague, was established in 1945 under the UN Charter in order to settle legal disputes between states and to issue advisory opinions on legal matters. The International Criminal Court was established in 2002 and also sits at The Hague. It hears prosecutions of alleged perpetrators of genocide, crimes against humanity, war crimes, and the crime of aggression. More than 100 states are members of the court, but neither China nor the United States are among them; the latter expressing reservations about the ability of the court to respect the constitutional rights of American defendants (including trial by jury) and the prospect of the politicization of the court – fears that seem tenuous, and have not troubled the numerous nations that have recognized the court’s jurisdiction.

Environmental law is a patchwork of common law rules, legislation, and international agreements and conventions whose chief concern is to protect the natural environment against the depredations of humans, such as carbon emissions that cause pollution and probably global warming. It seeks also to promote ‘sustainable development’.

 

Company law deals with the ‘floating’ of corporations and other business organizations. The concept of ‘corporate personality’ (under which a company has a distinct identity independent of its members) is of vital importance in the business world. It means that a company is a legal person with the capacity to enter into contracts, sue and be sued. Company law stipulates also the rights and duties of directors and shareholders, and is increasingly concerned with rules of corporate governance, mergers, and acquisitions.

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