1 WHAT IS LAW?
Descriptive and prescriptive
Descriptive law is when it describes how people, or even natural phenomena, ussually behave. Prescriptive law – it prescribes how people ought to behave. For example, the speed limits imposed upon drivers are laws that prescribe how fast we should drive. They rarely describe how fast we actually do drive.
Social morality, rules and law
Prescriptive law regulates relations between people. Some of them are customs – informal rules of social and moral behavior. Customs are not made by government and are not written down. Sometimes we break these rules and suffer any any penalty. Other member of society may ridicule us, criticize us or act violently toward us when we break these rules or one important of them. The rules of social institutions tend to be more formal then customs, carrying precise penalties for those who break them. Governments, making laes for their citizens, use system of courts backed by the power of the police to enforce these laes.There are two kinds of prosecution in many counties: a) to conduct a civil action against somebody, demanding compensation for his injury and getting his claim enforced by a court of law; b) police might also start an action against someone for a crime or violence. If found guilty, he/she might be sent to prison, or might be made to pay a fine to the court. Making and enforcing laws government have motives. Without laws there would be anrchy in society. Second purpose is the implementation of justice. Sometimes law are simply an attempt to implement common sense. Common sense is not such a simple matter. It becomes clear because in order to be enforced, common sense needs to be defined in law and definitions written down. The laws differ in variuous countries. It makes difficulties to write a general introductory book about the law today.
2 SOURCES OF MODERN LAW
Particular country has particular legal system. There two kinds of law in the world. Ne of them is based on English Common law, and has been adopted by many Commonwealth countries and most of the US. Another, sometimes known as Continental law, or Roman law, has developed in most of continental Europe, Latin America and many countries in Asia and Africa which have been influenced by Europe. Continental law has also influenced Japan and several socialist countries.
Common law systems
By doctrine of precedent, judges attempted to apply existing customs and laws to each new case, rather then looking to the government to write new laws. If the essential elements of a case were the same as those decision regarding guilt or innocence. If no precedent could be found, then the judge made decision based upon existing legal principles, and his decision would become a precedent for other courts to follow when a similar case arose. The doctrine of precedent is still a central feature of modern common law system. Equity is another important feature of the common law tradition. The courts of common law and of equity existed alongside each other for centuries. In England people were dissatisfied with the inflexibility or the common law, and this practice developed of appealing directly to the king or to his chief legal administrator (lord chancellor). As the lord chancellor’s court became more willing to modify existing common law in order to solve disputes; a new system of law developed alongside the common law. Rights that were not enforced as common law but which were considered “equitable” were recognised of this system. These two systems caused some problems. A person had to to begin actions in a different courts in order to get a satisfactory solution. In a breach of contractclaim, a person had to seek specific performance in court of equity, and damages in a common law court. Later these two systems were unified.
Continental systems
Continental systems are known as codified legal systems.They have resulted from attempts by governments to produce a set of codes to gevern every legal aspect of a citizen’s life. It was necessary to make laws that were clear and comprehensive, in order to separate the roles of legislature and judiciary. The lawmakers were influeced by the modlel of Canon law. It is important not to increase the differences between these two traditions of law.
Modern Japanese law
In spite of tradition of private law, the lawmaker’s of Japan decided to adopt criminal and civil codes closely based on the Continental law. And new codes of law developed under the postwar occupation show some influence from Anglo-American common law traditions. That is why modern Japanase law consists of two traditions of law.