Introduction of Courts

Courts, branch of government established to administer the civil and criminal law. The term court is also applied to the international tribunals intended to provide for the resolution at law of controversies among governments, namely, the Permanent Court of International Justice, established by the League of Nations after World War I, and by the International Court of Justice, established by the United Nations after World War II.

Courts are classified in many ways. Among the more usual general classifications are courts of record and courts not of record; courts of superior jurisdiction and courts of inferior jurisdiction; trial courts and appellate courts; and civil courts and criminal courts. In courts of record the proceedings are recorded completely; no detailed record is made of the proceedings in courts not of record. Police and magistrate's courts in the United States are, in nearly all cases, courts not of record. Courts of superior jurisdiction, often called higher courts or appellate courts, are generally those to which appeals are made from decisions of courts of inferior jurisdiction, referred to as lower courts or trial courts. Civil and criminal courts deal with cases arising from infractions of the civil law and the criminal law, respectively. The judicial organs of military establishments are called military courts. Courts with special, limited jurisdictions are known by the names of those jurisdictions. For example, probate or surrogate's courts are tribunals dealing with the probate of wills and the disposition of estates; military courts have jurisdiction over infractions by military personnel; and admiralty courts have jurisdiction over cases arising from maritime contracts and from violations of maritime law.

Other courts are designated by the territorial limits of their jurisdictions. Included in this classification are the territorial and state courts of the United States and the county courts of the U.S. and the United Kingdom. Municipal courts generally are criminal courts; however, a number have restricted civil jurisdiction.

Advocate

Advocate, in a general sense, one who pleads for another in a court of law or other tribunal. In the United Kingdom, professional advocates are called barristers and are permitted to plead or argue cases before the High Court of Justice; a barrister is distinguished from a solicitor, who may conduct litigation only in inferior courts. The avocat and avoué in France are analogous to the barrister and solicitor in England. In the United States, most former British colonies, and some parts of Europe, the two branches of the legal profession are not separate .

In a narrower sense, the term advocate was formerly used in Britain to denote a member of the College of Advocates at Doctors' Commons (abolished in 1857). These advocates had the exclusive right to plead in the ecclesiastical and admiralty courts and took precedence over all ordinary barristers. In the U.S. Army, the judge advocate general is chief adviser to the army authorities in the administration of military law.

Attorney

Attorney, in law, any person authorized by another to represent him or her. An agent who has been granted express authority to bind his or her principal is called an attorney in fact. Such authority is usually granted by a written instrument called a power of attorney. The powers conferred may be general, as when one gives another a mandate to manage all one's affairs during an absence, or special, as when the authority extends only to a particular business, or is otherwise limited or qualified. The term attorney at law is used in the United States to denote a legal adviser or representative in all manner of business. In Britain, upon the fusion of law and equity by the Judicature Act of 1873, the two classes of attorney and barrister were united under the name of solicitor in the High Court of Justice.

An attorney at law is an officer of the court, and as such is required, in the U.S., to take a binding oath of office to observe the U.S. Constitution and the constitution of the state of residence. Each state regulates by law the training and qualifications of attorneys. Usually a preliminary examination in general scholarship is required, followed by study at a school of law and sometimes by a clerkship or apprenticeship, varying from one to two years, in the office of a practicing attorney. Finally, an applicant must pass an examination in law before being admitted to the bar.

The duties of an attorney are to act with diligence and fidelity to one's client and to show average prudence, knowledge, and skill in professional dealings. In order to settle an action, the attorney requires, as a rule, the special authority of the client. No attorney can be compelled to reveal confidential information related by a client.

International Law

The legal process that concerns relations among nations is called international law. Belief and experience in some form of international law dates from at least the days of the Roman Empire. Such law differs greatly from national legal systems. No court has the authority or power to give judgments backed by coercive sanctions. Even in its most modern developments, international law is almost wholly based on custom. The precedents on which it rests are the acts of independent governments in their relations with one another, including treaties and conventions. Behind many of its rules is only a moral sanction: the public opinion of the civilized world. When treaties or conventions are involved, however, machinery to enforce them exists—either an arbitration or conciliation procedure or the submission of the dispute to a regional or international court.

A discernible body of rules and principles is observed or at least acknowledged in international relations. These rules concern such matters as territorial titles and boundaries, use of the high seas, limits on war, telecommunication, diplomatic and consular exchange, and use of air space. The major sources of international law on these matters are multilateral treaties, international custom, and such general principles as are recognized by civilized nations.

The United Nations is one of the primary mechanisms that articulate and create international law. The General Assembly and other agencies of the UN bring a combination of diplomacy, negotiation, and propaganda to bear on world affairs in ways that produce effective international treaties and affect world opinion. Certain courts also have indirect impact, including the International Court of Justice. Domestic courts in various nations at times also engage in the articulation of international law.

Private Law

Private law involves the various relationships that people have with one another and the rules that determine their legal rights and duties among themselves. The area is concerned with rules and principles pertaining to private ownership and use of property, contracts between individuals, family relationships, and redress by way of compensation for harm inflicted on one person by another. Historically, government involvement was usually minimal. Private law has also operated to provide general guidelines and security in private arrangements and interactions in ways that are complementary to morality and custom but that are not necessarily enforceable in a court of law, such as noncontractual promises and agreements within an association of private individuals.

The relative significance of purely private law has decreased in modern times. Public law dominates in government-controlled societies; democratic societies increasingly have a mix of public and private law. The private sphere includes individuals and a vast array of groups, associations, organizations, and special legal entities such as corporations. They compete with one another and with government for control of resources, wealth, power, and the communication of ideas and values. Special fields of law, such as labor law, facilitate and control this competition. Much of such law is in the commercial and corporate areas. The formerly purely private law of property and contracts, for example, is now overlaid with legislation, regulations, and judicial decisions reflecting the competition. The public law of taxation has significant impact on the whole private sphere. Courts have increasingly regarded resolution of seemingly private disputes as vehicles for response to changing social conditions and values—especially in the U.S. Thus, manufacturers have experienced an expansion of liability for physical injuries caused by defects in their products. The mechanism of insurance allows manufacturers to spread such costs across the general consuming public.

Public Law

Public law concerns the relationships within government and those between governments and individuals. Because the Roman codes were almost entirely limited to the private area, public law is usually not codified. In civil-law countries, separate administrative courts adjudicate claims and disputes between the various branches of government and citizens, and many lawyers specialize in public law. In France, Germany, and Italy, still other courts handle constitutional issues.

Public law is not quite so clearly demarcated in the United Kingdom and the U.S. Under the common-law approach the same courts handle public and private litigation. Because the United Kingdom has no written constitution, basic principles pertaining to government powers and limits and to fundamental individual rights are found in acts of Parliament, judicial opinions, and tradition. The United States, on the other hand, has a distinct body of constitutional law.

The development of administrative law is a comparatively recent occurrence. Numerous federal and state administrative agencies now make rules that reach into all manner of activities, including licensing, regulation of trades and professions, protection of health, and promotion of welfare. Their powers emanate from legislation, and their rules are reviewable by the courts.

U.S. constitutional law is the most extensive and pervasive of any country in the world. It is embodied in the Constitution and in the opinions of the U.S. Supreme Court rendered over time. Through its power of judicial review, the Supreme Court may invalidate any legislation or other governmental actions that it finds to be in violation of the Constitution. Constitutional courts in some civil-law countries have similar powers. In the United Kingdom no equivalent judicial power exists, and Parliament is supreme. In totalitarian nations, constitutional limits on legislative power are generally a matter of political determination.

The U.S. Constitution allocates power within the federal government and between the federal and state governments. The first ten amendments (the Bill of Rights) and subsequent amendments define fundamental individual rights by placing limits on the powers of government at all levels. Through its powers of judicial review and interpretation, the Supreme Court has played a remarkable role in facilitating the growth of national power and influence by means of decisions about acts of Congress and federal administrative law. The Court has, for the most part, acted extensively to invalidate and inhibit discriminatory legislation and to adjust the relative distribution of government-connected services and revenue so as to ultimately provide for more democratic social relations. The Court, however, is frequently the center of much controversy because of widely varying interpretations about its role and the nature of constitutional law.

Laws concerning taxation and the regulation of business are in the public area, as is criminal law, which involves the exercise of governmental power by way of enforcement and punishment. Historically, criminal law in Britain included crimes defined by the courts. In the United States crimes are defined by statute, thus satisfying constitutional notions of due process. The public-law nature of the area is further emphasized by other constitutional protections such as the right of the accused to remain silent and the right to effective counsel. Criminal law not only promotes security and order but also reinforces moral norms. Debate has been continuous regarding the legitimacy of government intervention in areas where moral attitudes are in significant conflict, such as in matters of sexual practices, pornography, birth control, and euthanasia.

SUBSTANTIVE AND PROCEDURAL LAW

In broad terms, substantive law defines the rights and duties of persons; procedural law defines and deals with procedures for enforcing those rights and duties. Substantive law determines a wide variety of matters—for example, what is required to form a contract, what the difference is between larceny and robbery, when one is entitled to compensation for an injury, and so on. The rules of procedure and jurisdiction determine the court or administrative agency that may handle a claim or dispute; the form of the trial, hearing, or appeal; the time limits involved; and so on. Related rules also cover the kinds of evidence that may be presented. Such rules are more limiting in trial courts than in administrative agencies. The fine points of procedural law are considerable, but they are generally thought to be indispensable to whatever efficiency and fairness law may have