Rarely do the words ‘law’ and ‘brevity’ inhabit the same sentence. The notorious verbosity of the law may suggest that any attempt to condense even its rudiments is an undertaking of utopian, if not quixotic, proportions. But this is the improbable task I have undertaken in these pages. I have attempted to distil the essentials of the complex phenomenon of law: its roots, branches, purpose, practice, institutions, and future. My purpose is to introduce the lay reader—including the prospective or novice student of law, politics, and other social sciences—to the fundamentals of law and legal systems, avoiding as much technical jargon as possible.
I hope too that this little volume will encourage curiosity about the intriguing nature of law, and stimulate further reflection upon, and exploration into, the central role it plays in all of our lives. Those in search of a deeper understanding of the numerous facets of the law will want to turn to some of the many works that I list in the Further reading section. There is also, of course, a wealth of admirable online legal resources, some of which are provided in Chapter 6 and in the Legal sources section.
It is important to stress that though the emphasis of the book is on the Western secular legal tradition (the common law and the civil law), I include brief accounts of other legal systems, such as Islamic law, customary law, and certain mixed systems, in order to offer an introduction to ‘law’ in its most general sense. I do, however, confess my predisposition toward the common law. This prejudice, if that is what it is, might be defended by pointing to what I see as a perceptible shift towards the globalization of various features of the common law. But the explanation is less arcane. English is the language in which the book is written by one who has spent most of his working life in common law jurisdictions. My limited proficiency in foreign languages dictates that all the sources—including those related to non-common law systems—are in English. Despite this encumbrance, I have attempted to curtail any gratuitous assumptions about the law that may spring from my own experience which, as it happens, is unusually varied. I studied and taught law in a mixed legal system (South Africa) as well as in two common law jurisdictions (England and Hong Kong), and I now live in a civil law country (Italy). My nomadic existence could, I suppose, be tendered as evidence in mitigation of any prejudice I may be guilty of exhibiting in these pages.
Serendipitously, two of these jurisdictions are particularly instructive; both underwent seismic transformations during the 1990s, entailing fundamental legal change. In 1992 the legal edifice of apartheid was demolished; two years later Nelson Mandela was elected President of the ‘new’ South Africa with its democratic constitution, bill of rights, and constitutional court. And in 1997, Hong Kong’s metamorphosis from British colony to Chinese Special Administrative Region was, fundamentally, a matter of law. The form and structure of this improbable creature—a capitalist enclave within a nominally socialist state—is guaranteed by Hong Kong’s Basic Law that safeguards the maintenance of the existing common law.
If there is a lesson to be learnt from these two constitutional episodes, it is the perhaps rather prosaic truth that the law is an imperfect yet crucial vehicle by which both to conserve and transform society. It would be rash to undervalue the capacity of an effective legal system and the rule of law to ensure the indispensable virtues of liberty, equality, certainty, generality, safety, and predictability. Few societies attain genuine harmony and accord; yet in the absence of a sound legal system the descent into chaos and conflict would surely beleaguer our increasingly polarized planet. The rising threat of Islamic terror poses formidable challenges to the ability of the law to strike a balance between freedom and security.
To abridge—without oversimplifying—the central characteristics of the law entailed countless cold-blooded judgments. Numerous chunks of text were reluctantly dispatched to my swelling recycle bin. I can only hope that in charting the central terrain of contemporary law, the frontiers I have drawn are neither excessively narrow nor unreasonably wide. I have endeavoured to plot the most prominent features of the topography of the ever-shifting landscape of the law, acknowledging, of course, that much lies on its periphery.
It is also important to emphasize that the law cannot properly be understood without an awareness of its social, political, moral, and economic dimensions. Legal theory or jurisprudence seeks to uncover many of these deeper philosophical elements that explain the complex phenomenon of law and the legal process. Chapter 3 seeks to elucidate the controversial tension between the law and the moral practices adopted by society. I have resisted further excursions into the often impenetrable thicket of legal philosophy, both because it lies beyond the modest objectives of this work, and in the hope that readers in pursuit of an introduction to this stimulating discipline may wish to turn to my Philosophy of Law: A Very Short Introduction, 2nd edition (Oxford University Press, 2014) which may—optimistically—be regarded as a companion volume to this one.
This new edition has been considerably improved as a result of the helpful and constructive comments and suggestions generously tendered by the anonymous readers of the manuscript. I am greatly indebted to them.
Gratitude is also owed to my cheerful co-conspirators of Great Clarendon Street. Special thanks to Andrea Keegan, Jenny Nugee, Deborah Protheroe, and Dan Harding.
Without the enduring love, encouragement, and support of my wife, Penelope (felicitously, a barrister), little would be possible. Over this loyal subject, her sovereignty is unbounded; her word law.