Name of candidate: George Tsiakalos UM number: I6022856 Skills A Word Count: 2540 Date assigned: 01/10/2010

Analytical report on Tony Honor, About Law, p. 1-21

Tony Honor s approach on the Legal Phenomenon. The author can understand what is the writers philosophical approach towards the institution of Law. He clearly seems to believe in the essence of Natural Law who contradicts with legal possitivism, since he mirrors the importance of the hyperlink of law and morality. The writer first familiarizes with the idea that law is an essential part of our society. As Lon L. Fuller (1968: 57) said: By speaking of law and society we may forget that law is itself a part of society contrasting with the legal positivism When we speak of law, legal order, or legal proposition, (Rechtssatz), close attention must be paid to the distinction between the legal and the sociological points of view. Max Weber (1922c: 1) He demonstrates the necessity of imposed rules that frighten people from wrongdoing. This imposed rule a necessity linked with morality would have no essence if there would be no personal contribution and understanding. As a former professor of mine in legal philosophy used to say: the legal chain that consists of law, morality and person itself is recyclable This mature mentality contributes to or assists in the regeneration of the correlations and the consciousness of freedom which makes the need for appropriate phase transformation and this is a renewal of consciousness. Therefore enforced rules under which a society is governed consist Law. Law is one of the most basic and necessary social institutions. Society would not exist if people did not mind for the rights of others. Nor could a society exist if its members did not recognize that they also have certain obligations towards one another. The law thus establishes the rules that define a person's rights and obligations.

The writer sets the example of traffic violation to present us how the legal system protects its citizens and prevents crimes. It appears that the writer is in favor of retributive justice and the theory of general prevention. Law is a set of mandatory and enforced rules that regulate relations in society. Also in another definition that comprises with the writers view is the following: "Law is the human which governs the social life in a" heteronymous, " imperative and" coercive" way. So the law does not come from the individual wishes each person but it is imposed externally (heteronymous regulation) requiring and defining what can and what should and what can not and should not do; without seeking the consent (mandatory setting) but imposing sanctions to who do not comply (coercion). However he milds his strict approach by clarifying the limits of law. He claims that Law cannot embody every aspect of social life and there are boundaries so the everyday life do not turn to an absolute system controlled by legal restrictions. The author praises the lawyer as the major element of defense within the law, since he notes the difficulty for lawyers to interpret the law. The writer divides law in two basic categories: domestic and international law. Domestic law is the set of rules that govern relationships within a State (state - citizens and between citizens). That differs in Public Law and Private Law, respectively, while new independent branches of national law may state the Labor Law, Agricultural Law, Industrial Law, Mining Law and Consumer Law. Public Law or Constitutional Law is a set of rules related to the organization and operation of state and relations via its institutions to its citizens. This is because the large number of rules on various sets of rules associated with a particular object, hence the name of each of these. It includes the laws that determine the form and the basic institutions of the State, and the limits of state power to the people. Criminal Law. Includes the law defining offenses and penalties imposed thereon. Private law is a set of rules governing relations between citizens of the society (state) in order equality. The Private Law is divided into two sub-sectors: Commercial Law: Total specific rules governing trade. Commerce Law and this differs in different disciplines: General Part (traders, trade, Trademarks, Unfair Competition), Law securities (bills, bills, checks), Bankruptcy Law, Maritime Law and Insurance Law. International Law Contrary to the above international law contains rules governing relations between countries (International Public Law) as well as relations with foreigners or between foreigners (Private International Law). Categories of Legal Systems After this categorizing the writer states that the Law varies from country to country and from culture to culture. He clearly clarifies the term of legal culture. Law is a formed part of an ethical space that already exists and governs the conduct and actions of people of a society.

This is the area of social morality and ideology on the fundamental values of life. The law, as part therein, receives its influence and affects in return, resulting in the formation and evolution. Thus, in the area of ethics of the society entering the court practice, the administration of justice, the prison system, the lawful conduct of the institutions serving the punishment, the ideology that stems from the law; they are added all together constituting the culture of that society. Then the writer proceeds to a basic categorizing. There are two major categories, the one of common law and the other of civil law. Civil law is based primarily on codified law. Supreme Law (Code) in each country is the Constitution. Common law is a lot different. Source of law is the doctrine of precedent ("case law"), pursuant to which the rule of law has developed case-law in a decision binding on other courts are now located in the same or lower level of judicial hierarchy. Laws exist, but they do not provide a comprehensive codification of law. But the writer also compares the two systems that rule the modern legal reality. There are many differences between those two systems. At common law, the law complements the existing law and it is an additional source of law. The courts are more flexible to find the fairest solution for all cases. In civil law does not apply this principle. The case law is simply an aid in future cases. The extensive codification of the law limits the flexibility of the courts, but makes it more predictable. Main disadvantage, is the legal maxim dura Lex, sed Lex (hard law, but law). The most important difference that the writer identifies between those legal realities is the difference in reasoning. In civil law, codified rights and obligations govern legal relations, whereas in common law the primary challenge is what is "fair solution" in each case. In the end of this section it would not be inappropriate to say that the writer takes a stand against common law by praising the importance of written law and devaluating the role of customs. This is how he links us to the next section to present us a summarized historical overview of written laws and codification. History of Written Laws He introduces us to legal writing by referring to the laws of Hammurabi. The Code of Hammurabi is one of the oldest set of laws. The Code outlines the laws and punishments in case of infringements. Some of the main themes are: theft, agriculture, destruction of property, marriage and rights within it, women's rights, children's rights, the rights of slaves, murder, injury and death. Penalties vary depending on the class of perpetrators and victims. The law does not forgive excuses for errors or misinterpretations, since the code was publicly exposed, so they can see it all and no ignorance. However, the majority of the population at that time could not read. The basic principle of criminal law in the Code of Hammurabi was the principle of equal remuneration. He identifies that those laws due to their strict nature where not flexible, since they did not adapt to cultural development. He then praises the work of Solon and his revolutionary amendments to the legal system of ancient Athens.

What he manages and I believe he succeeds by making a historical flashback into the first written laws, is to understand the importance of laws in a society. He puts question marks on the limits of laws and how Just can justice be, since the executive branch holds the power of scribing laws. He also makes a very successful remark, which I think that it is targeted to academics that interpret laws by saying that what is needed is not the odd wise individual with a knowledge of the law, but a body of specialists who have some political clout. And the reason that he mentions political clout is again to emphasize the link between Law and Society. After praising the role of lawyers in a society he then familiarizes us with the first legal system that introduced specialists of analyzing and interpreting law. The origins of legal principles and practices of the ancient Romans may be traced to the law of the Twelve Tables (449 BC). The Roman law as preserved in the Code that continued to exist in the Byzantine era, forming the basis of other legal systems in continental Western Europe. The Roman law continued to apply in a broader sense, in most European countries by the end of the 17th century. This is a reason that the writer emphasizes so much in the Roman Law. The main categories of laws in ancient Rome, as enshrined in the Code of Justinian and Theodosius called Ius Civile, Ius Gentium, and Ius Naturale. The Ius Civile (civil law) was a piece of legislation relating to the class of Roman society.The Urban Pretoria (Praetores Urbani) were people who had the power to decide matters of this kind. The Ius Gentium (law of nations) was a piece of legislation concerning foreigners and their relations with the Roman citizens. ] Responsible officials regarding these cases were Praetores. Finally, the Ius Naturale contained natural laws, that piece of legislation that was considered common to all people. The Roman lawyers used to work in different functions: the delivered legal opinions at the request of private parties. They also advised the judges were entrusted with the administration of justice, in addition to the Praetorians. Praetors helped draft the ordinances, which where publicly announced at the beginning of his tenure and also on how they would handle their duties. Some lawyers also held high judicial and administrative offices themselves. The fact that they were consulting the judicial authorities and had a political influence proves that they where not just advisers as they seemed to be. The needs of society again played a very important role and the role of lawyers was developed furthermore. The first step took place in England of 1607 where the ruler separated himself from justice. However the basic actor of this revolutionary development was a child of Renaissance, Montesquieu. He introduced the separation of powers i.e. the legislative, the executive and the judiciary that became the cornerstone of democracy. The continuer of the legal system of twelve-tables was Justinian. Justinian undertook the enormous task of composing a code of all imperial laws and a to perform amendments on all old law books. Charlemagne was the one who forced Justinians legal system into action, which continued to apply until the early 16th century. Then the cannon law or church law as it is commonly called was introduced, but co-existed together with Justinians civil law. Both codes had many similarities.

After all this historical reference the writer smoothly links the former legal systems with the modern era. With the exception of England the civil law system conquered Europe. This was achieved by what in summary is called the reception of Roman Law, which means all the former Laws from the time of Roman Empire to the latter. Civil versus Common Law The modern era as the writer states is characterized by the need for every citizen to have a written handbook of rights and obligations. This was introduced by the Prussian code of 1794, which was followed by the Napoleons code of 1804. By presenting those two codes the writer demonstrates the aspects that make a code successful. First of all the Code must be practical and understandable, but not so vague that the courts can interpret it at any extend. This is both for forgiving ignorance to the average citizen and also not to let judges rewrite the laws as they desire. The German Code that came into force in the beginning of 20th century achieved this. The historical reference make us understand that Civil law (or civilian law) is a legal system inspired by Roman Law, the primary feature of which is that laws are written into a codified collection. Conceptually, it is the group of legal systems and ideas primarily derived from the Justinian Code, but heavily influenced by Germanic, ecclesiastical, feudal, and local practices, as well as doctrinal strains. The writer praises this system mentioned above, but he finds the opportunity to state a personal opinion; scholars as himself and court decisions should add on any Legal system, as perfect as it may be. This statement mentioned, as personal as it may be characterizes in an absolute way a different legal system, common law. Common law is the law imposed by the Norman conquerors in the conquered Anglo-Saxons, which was formed through the judicial precedent (precedent) based on the decisions of the Royal courts. It was forced across England (this is why it is called "common") and then applied to local rules and customs. The common law is till today the basis of English Law. This system is constructed by a vice versa philosophy of that of Civil law. Whereas civil law is based on written rules and obligations, which then create code-judgee or case law, the common law system uses the precedent to create rules and obligations. As complicate as this system may sound it introduced crucial remedies and other elements that characterize todays modern legal world. Firs of all the writ of habeas corpus moderated the authority of the nobles to accuse whomever they desired. This was achieved by the need of legal justification in order for someone to be detained. Secondly, common law developed the system of jury that plays a primary role in modern states as in the USA or a secondary role for criminal cases in other nations. The writer then distends himself from the common law system by simply arguing that the common law system is a system built up by judges and advocates.

The legal reality today has brought closer those two systems. Not only by the fact that the civil law system has borrowed many elements from common law, but also that in a globalized world those systems interact. However the writer still points the distance between those systems by blaming the actors of the legal systems i.e. from one hand the legal advisers together with the university-trained law system for as far as the civil law system is concerned, and from the other hand the elite of judges and senior advocates for as far as the common law system is concerned.