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The nature of Law The law is a set of rules wich form the pattern of behaviour of a given society. The laws with which we have to deal differ from the “laws” of nature which are “rules” derived from observation of the physical universe. One school of thought which has persisted through the ages, and which was epitomized by the work of John Austin (1790- 1859) – a follower of Jeremy Bentham ( 1748 – 1832) – has it that law has nothing to do with justice or morality because it is a command of political superiors ultimately backed by a “sanction”, an unpleasant consequence (such as imprisonment), in case of disobedience. This theory (like the Marxist theory, which sees law as the will of a ruling class) is attractive, if only because it is simple : it derives ultimately from the image of imperial Rome and is connected with the work of Jean Bodin (1530 – 1596) who saw in the emergent structure of nation states and absolute monarchies of the post – reformation a social structure based upon the “sovereignty” of the monarch, whose word was law – “L’état”, said Louis XIV, “c’est moi” : and that was true. But this was an inadequate picture: for not only may laws be broken without anything in the nature of punishment (as, for instance, the rules which prescribe the forms for making a will) but in a complex modern State, with its political checks and balances, it is by no means easy to detect a “sovereign” in anything more than a formal sense. Another, and an older, school of thought envisages two sorts of laws. One sort is unconnected with morality: such as the legal rule of the road “left” or “right”. Such a rule is neutral and unchallengeable, whether decreed by a tyrant or enacted by a democracy. The other sort is concerned with matters which have a moral bearing; so that in relation to them the context of legal rules (enforced by the state) becomes coincident with that of moral rules: the must of the law and the ought of morality meet on common ground. “Thou shalt not steal” is, in our society, at least, both a legal and a moral rule. Where rules do thus have a double context the school in question (the “natural law” school) contrasts “natural” law with civil (state) law and asserts that the latter must accord with the demands of the former; or, at least, must always strive to do so. This school derives from Plato and Aristotle and beyond, and it has had its triumphs. Embedded in stoic philosophy and propagated by Cicero, it provided much of the inspiration for the work of the superlative jurists of the classical period of Roman law whose works became enshrined in the Corpus Juris Civilis, and thence became the basic of the “civil” law of Europe. And, indeed, “natural” law, as thaught by Saint Thomas Aquinas (1224 – 1273), in the guise of divine law revealed to man by human reason, underlay much of the stability of the middle ages; for, as Bracton had it, even the King himself was subject to it. (A doctrine, of course, to be violently repudiated by Machiavelli at the reformation). And “natural” law did more: it underlay the thesis of the Dutch jurist, Hugo Grotius (1583 – 1645) in his De Jure Belli ac Pacis (“Tha Law of War and Peace”) which founded modern international law. But this theory has a serious shortcoming. Neither Plato, nor anyone else, has ever given a satisfactory definition of “justice”, nor has anyone ever been able to say, beyond the repetition of platitudes – such as “do as you would be done by” – what the ultimate “ought” of any given situation really is. And, indeed, the concept of “natural” law can be, and often has been, a dangerously emotive instrument in the hands of extremist politicians who seek to twist the content of the law to suit their ends. a) The classification of law Municipal law, as opposed to international law, is commonly divided into categories. The chief of these categories is the distinction between public law on the one hand, and private law on the other. Public law consists of those fields of law which are primarily concerned with the State itself. Constitutional law, which regulates the functioning of the organs of the central government, and the relationship of the individual to them, is a branch of public law. Criminal law is also “public” law because crimes are wrongs which the State is concerned to prevent; and so is the most of the law created by the modern statutes designed to promote social security, for these statutes cast special duties upon the State. Private law is the part of the law which is primarily concerned with the rights and duties of individuals. Thus the branches of the law which govern private obligations – that is to say, the law of contract and of torts – are all aspects of private law. So too, is the law of property, which determines the nature and extent of the rights which people may enjoy over land and other property, and the law of succession which governs the devolution of property upon death, and in certain other events. Each field of law tends to overlap with that of its neighbours and no one field can be fully understood in isolation from the rest. A special subject is the “international” law referred to above, which governs the mutual relationship of states, is “public international law”. “Private” international law (also called the “conflict of laws”), governs a different field; its rules are primarily concerned with determining what system of state law should properly be applied by our courts in cases which contain some “foreign” element. Suppose, for instance, that A, in England, makes a contract by correspondence with B, a Frenchman, in France and that by the terms of this contract B is to perform services for A in America. Suppose that B breaks his contract and that A sues him in England. It will be clear that English law is not necessarily the correct law to be applied to all, at any rate, of the facets of this case. In order to determine which is the correct system to apply, the court will consult the rules of private international law.