Talk:Law/Archive 1

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May I suggest that people are careful to distinguish between the law of different countries, and discussion of the law in gyleneral? Otherwise you end up in practice treating common law, and more particularly United States law, as if it was all there was to law. I suspect a lot of the legal terms you are seeking definitions for either don't exist in other legal systems, or are given quite different names.

Simon J Kissane

I wandered into this page as a result of expanding the Library of Congress Classification pages; most of the subclasses are determined geographically. I was looking for ways to standardize the way linkages are made to the law of specific countries, and to establish a standard format for these titles. Using Peru as an example which of the following would be the preferred format?
- "Law/Peru"
- "Law of Peru"
- "Law in Peru"
- "Peru/law"
- "Peruvian law"
Thus far there seems to be much less in Wikipedia about law than most other subjects. That means the goofy conflicts have not yet been set up. I'd like to hear other opinions on this before I go ahead in one way. Meanwhile, I'll set up Class K without most of its links.

---User:Eclecticology

FWIW, I favor the second format -- i.e. Law of Peru -- and I have begun using it.

--NetEsq11:37pm August 30, 2002 (PDT)

My legal schooling probably isn't quite up to the task, but someone better versed might consider reorganizing this to actually reflect some hierarchy of legal disciplines rather than the simple list of jargon here. My copy of Blacks Law Dictionary has over 1600 pages of terms, so this page might get a little unwieldy in its present form. ---LDC

Subsequent toyour post, I've spent some time reorganizing this page, and I'm not yet done, but I'm pretty happy with the general form that is taking shape.

--NetEsq11:41pm August 30, 2002 (PDT)

Once tax season is behind us, I may have time to divvy it up so that it at least makes a little more sense... AS

Are there terms for:

Organized coordinated legal action taken in many jurisdictions throughout the nation against a single industry or entity (e.g., tobacco)
Harassing someone via repeated lawsuits

As to the above questions:

I don't believe there is any specific term for the first. For the second, see "barratry" and "vexatious litigation" above.

An organized coordinated legal action of the sort mentioned is called a nationwide class action. The federal courts have an internal mechanism for managing complex litigation and generally assign one judge to oversee the process

See: Class actions and Vexatious litigation. These are classified under Civil procedure.

--NetEsq11:42pm August 30, 2002 (PDT)

What about jurisdiction or locality whose laws apply? Where you sign a contract that is governed by the laws of another state so that the other party can take legal action locally.

There is a major area of law called "Conflict of Law" that seeks to resolve this kind of problem. It is understandably quite complicated. For example, some places have quickie divorce laws which visitors wanting a change of spouse may want to apply, but they sometimes can go back home to find themselves charged with bigamy because the home jurisdiction refuses to recognize the quickie divorce.---User:Eclecticology

As a general rule, parties to a contract can agree that the law of a particular state will control the interpretation of the contract. That is a very different proposition than agreeing that all cases will be brought in Tennessee, for example, which a court would not enforce.

Isn't there a term for this and for defeating a legal challenge by making it expensive for the other party due to the other party's location being in a remote area?

Isn't there a term for what? The question of where the lawsuit can be brought is often different than the question of which law will control. If I live in Alaska and you live in Florida, there will always be an imbalance in where the suit is brought!

Anyone have any input on whether it would be advantageous to create a sub-category under Law entitled Conflict resolution? F. Lee Horn

A sub-category may not be the best way to handle this. Conflict resolution often involves applying common sense, and that is an area of human relations that the law likes to avoid.
We need articles on negotiation, arbitration, as alternatives to litigation, an article on conflict resolution could lead into all 3. User:Fredbauder

I think loss of consortium should not have been deleted and that a page on this might indeed be valuable. --Daniel C. Boyer

Simon J Kissane wrote:
"May I suggest that people are careful to distinguish between the law of different countries, and discussion of the law in general? Otherwise you end up in practice treating common law, and more particularly United States law, as if it was all there was to law. I suspect a lot of the legal terms you are seeking definitions for either don't exist in other legal systems, or are given quite different names."

"The Law" (read United States law) is unique to the American (read United States) experience. To wit, what most people in the United States properly refer to as "The Law" is what most people in other countries properly refer to as "the government." And (quite frankly) I don't think there is a holistic solution to this sort of ethnocentrism. Rather, we as Wikipedians need to wait until the inevitable cultural conflicts and controversies arise in re the law. Meanwhile, we should all take care to include appropriate citations and citation signals in ALL of our Wikipedia articles. --NetEsq

The most recent revision to this article is a step backwards. It is unclear, inaccurate, and rambling. As for the attempt to include anarchist law in the general law article, this doesn't make sense. Right or wrong, the position of the anonymous contributor who is seeking equal time for anarchism is an extremist position which seeks to radically re-interpret the commonly accepted definition of "The Law." These views should be referenced in another article, such as politics, political science, or anthropology. In sum, we should return to this version of the law article. --NetEsq

I hope you were referring to the edit just before mine :-)

Anarchist law is considered (here) mostly as a paradoxal hypothesis, given that we believe that the law has mandatorily to come from an authority (which is what anarchy will not have in its system) as one of its essential carachteristic elements.

However, Anarchist law has effectively been studied in doctrine, so I think that the better place for it would perhaps be in some page regarding theoretical jurisprudence or juridical research. I didn't remove it completely just because in my area it is quite a meaningless (or funny) expression, but I couldn't know what it eventually could be for other cultures.

I added a note instead on the law as an expression of the collective personality of a human group, which is a rough line about some concepts that here we collect under the discipline of philosophy of law. I believe you can add the corresponding arguments that will certainly be studied in your system. This could make the starting sentences more complete, beginning the definition from the essence of legally recognisable human relationships (and what law provides order for) --Gianfranco

First of all, I can easily see a place for anarchist law in a jurisprudence article. That makes as much sense as discussing it under the auspices of political science or anthropology.

Secondly, I was pleased to see your rewrite of my practice of law article, which made much more sense after you edited it. However, I cannot offer the same compliment for your rewrite of the law article.

Law qua law has a very clear, concise, and formal definition, as set forth in this previous version of the law article. Defining law as "the collective personality of a group," as you have done, is is an unnecessarily vague definition; that viewpoint could and should be expressed under the auspices of jurisprudence.

In sum, the present law article is vague and confusing, and we should restore the previous version.--NetEsq

Law is certainly not "the collective personality of a group". Jurisprudence deals instead with the law that is in use in a human group which is usually distinguished because it (the human group) has a collective personality. So, what distinguished the discipline is that it studies the laws of a human group of similar importance like a state has. Jurisprudence doesn't deal with minor moral codes like - let's say - deontology, in fact. In the version you propose to restore, I cannot clearly understand _why_ "This branch of knowledge can be distinguished from the divine law of the Jewish or Mosaic code" nor I can see which is the difference between jurisprudence and other sciences. This is why I added those elements, even if the result was confusing.

Additionally, in latin systems (which I understand are probably not going to be described here), the study is focused - in terminology too - on the "right", rather than on the "rule". Our definition - which is not so concise, unfortunately, as yours - starts then from the concept "I recognize your right, I accept a law to protect it" (concept that is developed in juridical phylosophy). This is where the study starts from, here, as well as any attempt of definition. I think I'm reading instead that, in the vision that you and other contributors propose, the observing point starts perhaps from "there is a law, a state produced it to grant your rights". But my interpretation might be wrong, so this is why I was asking for your help to sharpen this point. Of course, while quickly editing for NPOV restoring (please, see summaries too), this could not properly show clear or necessary in my quick addition. I am sure that with your kind help, we could clear this point too. As any ordinary reader, I'm here to learn.

As a general consideration, in fact, I believe that conciseness is a good style. Completeness a better one. The questions that are in the Philosophy of law article should deserve a rapid mention - if not a concise answer - in the main article. --Gianfranco

A new first sentence, a basic definition of law; although perhaps the notion of conflict resolution should also be worked in. This beginning leads naturally into a discussion of custom, customary law, and the common law as well as statutary law. User:Fredbauder

I can see that the concept of conflict resolution has a great importance in some areas. But a law is produced - in its original intention - to ideally prevent people to get into conflict. Then it can also provide elements to solve conflicts, but law is not created to solve them only, it is there instead to avoid them from coming to consistence.

It could then be conceptually better perhaps (IMHO), to describe first the main goal of the law ("in this case, you will act this way") and to keep the secondary scope of the law ("if you don't follow the law, this is what will happen to you") to a secondary argument. Of course, this requires that another concept is commonly agreed: that the law is complete by definition, in the sense that the legal system is produced in such a form that it can cover any situation might occur in real life.

But this is only my opinion :-) --Gianfranco

The passage of an important new statute or rendering of an important decision by the Supreme Court (or the House of Lords) usually leads to a flurry of litigation as concerned parties try to determine the exact limits of the new dispensation. As to the notion that law is complete by definition, its pretty much understood that law covers only the situations which it specifically addresses and then only if judicial procedures are used. Many business transactions proceed entirely without reference to law, and certainly without recourse to the courts. It is only when the usual course of business doesn't work that recourse is had to law. User:Fredbauder

Gianfranco wrote above:

"In the version you propose to restore, I cannot clearly understand _why_ 'This branch of knowledge can be distinguished from the divine law of the Jewish or Mosaic code' nor I can see which is the difference between jurisprudence and other sciences. . . .

"Additionally, in latin systems (which I understand are probably not going to be described here), the study is focused - in terminology too - on the 'right', rather than on the 'rule.'"

What distinguishes the branch of knowledge known as "the law" from divine law is that the former is established and enforced by a state authority whereas the latter is (presumably) established and enforced by God. Historically, these two systems of law have a great deal of common ground, especially in theocracies. Perhaps this could be made more clear.

To be clear, I do not advocate giving short shrift to the prescriptive aspect of the law which you ascribe to latin systems. This is an important component of all legal systems which should be discussed. However, I would question the assertion that *ANY* legal system "can cover any situation which might occur in real life." Indeed, the law's inherent failure to anticipate any and all situations which might occur in real life is one explanation for the continuous evolution of the law.

As for conflict prevention vs. conflict resolution, there are many areas of the law which cannot be fairly characterized as having either one of these goals. For example, if you want to change your name, you can petition a court for permission to do so. Moreover, the primary goal of many areas of the law is to provide a means for determining cooperative methods of actions, such as in the administration of commercial transactions. In these areas of the law, the emphasis is on how to do something, and the concept of conflict prevention/resolution is a secondary consideration which may or may not even arise in the context of a particular transaction.--NetEsq

Well, how about the catch all term, "Decision Process?" Nice $10 word, obscure without definition, but seems to cover the field. BTW I was wondering if law should not be a disambiguation page with perhaps the main link to Law as social control by the state, with secondary links to law as an academic disciple and further links like to laws as scientific principles. User:Fredbauder

By any commonly accepted definition of the law, law qua law is not a process. It is a body of knowledge which has as its proper scope the rules of conduct which are established (and enforced) by state authorities. This body of knowledge can be distinguished from jurisprudence (which has as its proper scope the philosophy of law), the practice of law, (i.e., the applied science of law), and specific legal systems. To this end, the previous version of the law article served the process of disambiguation without actually being a disambiguation page.--NetEsq

Decision Process was the title of the Introduction to Law course at the school I attended. I think most people involved with law do things, although they draw upon what they know in deciding what to do. User:Fredbauder

I don't have Black's Law Dictionary handy, but I think it's a safe bet that the term "decision process" is not listed there, nor is that term likely to be listed in any other law dictionary, nor is it likely to be used as part of any standard definition of what the law is, notwithstanding the title of the Introduction to Law course at the school you attended.

When legal scholars speak of what "the law" is, they are usually referring to a specific legal code, or (in the case of common law jurisdictions) one of the many Restatements of the Law, or (in the case of jurisdictions where the law is a hybrid of various legal systems) one of the many other authoritative reference works which attempts to summarize the law of a particular jurisdiction and/or subject area, such as Witkin's Summary of California Law. In other words, law qua law is first and foremost a branch of knowledge which has a clearly defined scope. In contrast, when lawyers are looking to "do something" with the law, they usually turn to a "legal practice guide." Meanwhile, the Wikipedia law article keeps getting more confusing with each revision.--NetEsq

The question is not the usage "the law" by legal scholars is but what law is as an encyclopedia topic; for example, the enactment of a statute falls under the topic; a citizen reading the statute; going to a lawyer to inquire as to what it mean; making an agreement with a customer that should the provision of the law ever come into question that that question will be determined by a certain arbitrator; all actions relating to social control and making decisions. Law is an acedemic field, a profession, and a body of knowledge which I hope to make clear in the introduction of the article, the disambiguation portion. User:Fredbauder

<<The question is not the usage "the law" by legal scholars is but what law is as an encyclopedia topic; . . .>>>

I fail to see the distinction. Who better than legal scholars to define what the law is? Moreover, my comments in re how legal scholars define the law were a response to your dubious assertion that law qua law can be defined as a "decision process." That assertion has no place in the main law article.

<<for example, the enactment of a statute falls under the topic;>>

I disagree. The enactment of a statute falls under the topic of legislation.

<<a citizen reading the statute; going to a lawyer to inquire as to what it mean; making an agreement with a customer that should the provision of the law ever come into question that that question will be determined by a certain arbitrator; all actions relating to social control and making decisions.>>

These issues are not law qua law; they are topics which should be discussed under the ambit of particular legal topics, such as "statutory interpretation" or "contracts," or related topics, such as "sociology" and "political science."

<<Law is an acedemic field, a profession, and a body of knowledge which I hope to make clear in the introduction of the article, the disambiguation portion. >>

Law qua law is first and foremost a body of knowledge: The academic field to which you refer is the study of that body of knowledge, and should be considered as part and parcel of the discussion found in the main law article; the profession of law is the application of that body of knowledge, which should be discussed in the "practice of law" article.--NetEsq

My thought about the organization of the article is that it should be organized more or less like the article China/Temp with a brief section on subtopic with closely associated links to an expanded article on subtopics.

You ask, "Who better than legal scholars to define what the law is?" I would say students of government and society. User:Fredbauder.

That was a rhetorical question. Cf.: Who better than philosophers to define what philosophy is? Who better than anthropologists to define what anthropology is? Who better than biologists to define what biology is? Etc., etc., etc.

In other words, the law is a field of knowledge with a clearly defined group of scholarly experts (i.e., legal scholars) which society relies upon to recapitulate what the authors of the law (i.e., legislators and courts) set forth as the law. And should there be a good faith disagreement between legal scholars and students of government as to what the law is, the legal scholars must prevail. Any assertion to the contrary is pointless sophistry. We might as well argue whether water is wet.--NetEsq

I disagree with NetEsq, not because I deny that lawyers are experts on "the law" but because the word "law" means many different things, depending on who is speaking and in wuat context, and for what purpose. In general, I do not think that an encyclopedia should privilege any one of these meanings. However, if it must privilege one, it should not be the most common one but the most general one.

"A" law can be a specific peice of legislation in a particular country. "The" law can be an institution regulating the production and enforcement of specific laws. It can also be a euphemism for one part of that institution, e.g. cops. When we restrict ourselves to one country, it is relatively easy to define what "law" is. But what about a comparative framework? I do not mean a framework that includes England and the US, which are relatively similar. What about a framework that would include the US and the Cheyenne and the Barotse? There is a classic work of legal anthropology called The Cheyenne Way: COnflict and Case Law in Primitive Jurisprudence by K.N. LLewellyn and E. Adamson Hoebel, and another classic by Max Gluckman, The Judicial Process Among the Barotse of Northern Rhodesia. In order to accomodate these kinds of legal systems, a much more general definition of law is required -- and obviously, U.S. trained lawyers or jurists would have limited (if any) expertise.

One solution is to have separate articles for separate legal traditions. And certainly, if there is only one article it should have separate sections for different legal traditions. But if there is one article on "law" (not statutory law, not common law, not law in the US, but just "law"), then it needs a more general definition and introduction. Perhaps something like, "Law refers to a set of beliefs and practices that promote social control and/or social order?"

Our legal system (I live in the US) is "adversarial," and I can understand why someone from this culture would think that in a conflict of interpretation between two parties one should prevail. But I do not think this is a good method in scholarship or in writing an encyclopedia. There is a place for lawyers from the US and lawyers (or whatever they are called) from France, and for political scientists and anthropologists, in an article on "law." What is needed first and formost is to develop a framework that accomodates these different views. Slrubenstein

<< I disagree with NetEsq, not because I deny that lawyers are experts on "the law" but because the word "law" means many different things, depending on who is speaking and in wuat context, and for what purpose. In general, I do not think that an encyclopedia should privilege any one of these meanings. However, if it must privilege one, it should not be the most common one but the most general one. >>

Actually, you and I are in total agreement, as the definition of law as a field of knowledge is the most general definition possible. By its nature, such a definition would require a discussion of the discrete components of that field of knowledge. To wit:

<< "A" law can be a specific peice of legislation in a particular country. "The" law can be an institution regulating the production and enforcement of specific laws. It can also be a euphemism for one part of that institution, e.g. cops. >>

These distinctions are totally consistent with the essence of the definition of law that I originally proposed, which would make the main law article an introduction to various legal systems, various subject areas of the law, alternative definitions of the law, etc.

<< When we restrict ourselves to one country, it is relatively easy to define what "law" is. But what about a comparative framework? I do not mean a framework that includes England and the US, which are relatively similar. What about a framework that would include the US and the Cheyenne and the Barotse? >>

Once again, such a discussion is totally consistent with the framework of the law article as it was prior to the recent round of revisions which the law article has experienced.

<< In order to accomodate these kinds of legal systems, a much more general definition of law is required -- and obviously, U.S. trained lawyers or jurists would have limited (if any) expertise. >>

I wholeheartedly disagree. If there is a problem of ethnocentrism in the law of the United States, it is found among the lay public, not among those with formal training in the law. I say this as someone who has formal training in both anthropology and the law. Indeed, conflicts of law is an area of jurisprudence and legal practice which any formally trained jurist treats with consideration and respect.

<< One solution is to have separate articles for separate legal traditions. And certainly, if there is only one article it should have separate sections for different legal traditions. But if there is one article on "law" (not statutory law, not common law, not law in the US, but just "law"), then it needs a more general definition and introduction. Perhaps something like, "Law refers to a set of beliefs and practices that promote social control and/or social order?" >>

Have you reviewed the previous version of this article to which I advocate a reversion? It reads (in pertinent part):

"Law is the branch of knowledge dealing with the rules of conduct that are established and enforced by a state authority and which are usually organized into a coherent legal system. This branch of knowledge can be distinguished from the divine law of the Jewish or Mosaic code, which is attributed to God, and natural law, which is purported to be inherent in the natural order. . . .

"There are several distinct legal traditions, and each jurisdiction has its own set of laws and its own legal system. . . .

"A particular society or community adopts a specific set of laws to regulate the behavior of its own members, to order life in its political territory, to grant or acknowledge the rights and privileges of its citizens and other people who may come under the jurisdiction of its courts, and to resolve disputes. Moreover, the several different levels of government each produce their own laws, though the extent to which law is centralized varies. Thus, at any one place there can be conflicting laws in force at the local, regional, state, national, or international levels."

I'm not saying that this version of the law article is perfect, but every revision since this version has made the article progressively worse. Even so, I am not willing to rewrite or revert the article for fear that I may be giving short shrift to the opinions of other contributors, a constant concern when one is defending his or her own writing. Rather, I hope to inspire someone else to rewrite the article in a way that addresses my concerns as well as the concerns of others.--NetEsq

Thank you for your detailed response. I was commenting more on the tenor of the discussion in the Talk page than on the subject page itself. I am glad that we are mostly in agreement. I am not a scholar of legal systems myself, and don't feel comfortable doing any major work on the article. nevertheless, I would question the earlier definition

"Law is the branch of knowledge dealing with the rules of conduct that are established and enforced by a state authority and which are usually organized into a coherent legal system. This branch of knowledge can be distinguished from the divine law of the Jewish or Mosaic code, which is attributed to God, and natural law, which is purported to be inherent in the natural order. . . .

1) Legal anthropologists like the ones I cited (and Malinowski too) have written of "law" in non-state societies. The initial definition is too narrow.

2) Does "natural law" mean the law of thermodynamics, or some law concerning social behavior among humans? Virtually all anthropologists today question or reject the notion of "natural" law in the second sense. This does not mean that there is no such thing as "natural law," at least as an idea. But it is an idea that developed within state-level societies; although the idea may presuppose or refer to non-state conditions, it nevertheless oeprates within the legal culture of state societies, not of non-state societies.

3) Most "Divine" law codes also operate within state-level societies.

It seems to me that within state-level legal systems, there have been a number of legitimizing beliefs for legal systems: "nature," "God's will," "the general will." Perhaps these result in radically different kinds and functions of law, but I wonder if the real difference is solely in how the laws are justified.

I would not assume that any of these three ideas, found in state societies, are applicable to non-state societies (of course, they may be!).

I still believe a better opening definition would be "Law refers to a set of beliefs and practices that promote social control and/or social order" Such laws may regulate conduct, but they often do more, like defining what a person is, or what property is. Most generally, laws regulate human relationships, and conduct is but one (important) element. The article can go on to discuss different legal processes and legitimating ideologies in different societies, as well as providing a more detailed discussion of its functions.

If NetEsq or anyone else is in agreement with this, I am glad -- I am only trying to be constructive. Slrubenstein

Reorganizing the law article to incorporate all of your thoughts would be quite a feat. Even so, I think we're on the right track here.

The idea of law in non-state societies is particularly problematic. In such instances, the law is what it is, and (generally speaking) there is no written desription/summary of the law until an anthropologist shows up on the scene and attempts to reduce a culture group's consuetudinary law to writing. Even so, this type of law needs to be incorporated into whatever general definition of law is used by Wikepedia.

agreed

The idea of natural law (as it relates to law qua law) is a highly secular and ethnocentric one, and unabashedly so. It presumes that people are endowed with inalienable rights by their "Creator," a secular term used by Thomas Jefferson in lieu of the term "God," with all its religious implications. Indeed, the ideal of human equality is a highly ethnocentric one, as is the concept of property. You touched on this briefly when you noted that the law is often used to define who and what people are or what property is and to whom property purportedly belongs. To wit, for many years the infamous Dred Scott decision stood for the proposition that some human beings were property (i.e., slaves) and that property rights to human beings could not be alienated by operation of law.--NetEsq

Well, you are obviously much more qualified than I to work on the article -- I will check in later to see if I have anything to add, and I look forward to seeing how it develops. I certainly agree with you that "the collective personality of the group" is a meaningless way to define law. Perhaps Fredbauder and Gianfranco's earlier comments help call attention to certain issues and terms that need more context and framing. Anyway, I look forward to reding the next version, Slrubenstein

I have replaced the deleted material I wrote earlier without removing any existing material (well almost, I did do an disambiguation to Law (principle). I will work toward integrating the article later. User:Fredbauder

<< I have replaced the deleted material I wrote earlier without removing any existing material. . . >>

To what end? Most of this "deleted" material was not deleted; it was integrated into the new version of the article. By "restoring" the text which you have placed at the top of the article, you have created a redundant, inaccurate, and confusing article.--NetEsq

Continued at Talk:Law/Old 2