Chapter 2 Areas of Law

We categorise as we do because we have the brains and bodies we have and because we interact in the world as we do.

——George Lakoff

Every discipline or field has a kaleidoscope of categories and subcategories.

In music，for instance，there is classical，pop，jazz，rock，country，blues and countless other genres.In fields of study，be it architecture，engineering，medicine or psychology，one spends three or more years in the university，learning some 30 to 40 subjects in that field.And so on.

Likewise，in law，there is a whole compendium of areas or subjects.The full list exceeds a hundred and，as in other fields，the list just keeps expanding.Quite intimidating.

Fortunately，as in all disciplines，it is possible to identify fundamental or basic categories.The wide field of science，for example，can as a start be categorised into biology，chemistry and physics.

In law，the three basic building blocks are crime，tort and contract （or criminal law，tort law and contract law） and，for that reason，these subjects are typically taught in the first year of studies in law schools.

Criminal law is something most of us can grasp，probably because of what we have seen or read on TV，in the cinemas，in the newspapers or on social media.Criminal law seeks to establish order in society.A crime is essentially a wrong done to society （and not just to the individual victim）.

A crime carries the consequence of punishment，whether in the form of a death sentence （in some countries），a prison term or a fine.In criminal law，the state takes an active role in enforcing the law.Accused persons are prosecuted and courts mete out punishment that is proportional to the crime.

In each country，there is usually a key statute （Commonwealth countries typically have a Penal Code） setting out the more serious crimes，such as murder，rape，robbery，cheating，assault，etc.This statute is complemented with a Minor Offences Act （or Miscellaneous Offences Act），which sets out less serious crimes such as those relating to nuisances，vagrancy and disorderly conduct.

On top of that，there are myriad individual statutes focused on specific crimes，such as bribery，gambling，drug taking，money laundering and traffic offences，to name a few.The statute books of each country contain literally hundreds of crimes and offences.

Tort，a term of French origin，refers to a civil （as opposed to criminal）wrong other than a breach of contract.A tort is a wrong done to an individual （or an entity）.

As you may suspect，some torts may be crimes and vice versa.For example，trespass into a person’s home is both a crime and a tort.For the criminal dimension，there is criminal liability and it is for the state to prosecute the wrongdoer.On the civil side，the homeowner may sue the intruder under the tort of trespass to land.

Unlike criminal law，which enforces the law through punishment，tort law aims primarily to compensate the victim.In some situations，an injunction （a court order telling someone not to do something；see Chapter 13） may be sought.

Tort law is a very substantial and complex area of law.In the main，there are some two dozen torts.The most prominent and prevalent of these is the tort of negligence.Negligence is essentially the failure to take reasonable care to avoid causing harm to others.Apart from negligence，the more common torts are nuisance，defamation and，increasingly，what are collectively called business torts，such as the tort of inducing a breach of contract and the tort of conspiracy.

The tort of inducing a breach of contract is where A intentionally causes B to break his contract with C.This situation allows C to sue A in tort.This is in addition to his right to sue B for breach of contract.In the tort of conspiracy，A and B conspire to harm C’s business.

While the majority of torts require fault on the part of the defendant，either in terms of intention or negligence，some torts impose strict liability （liability even if there is no fault，in the sense of intentionally or negligently causing harm），such as the liability for keeping wild animals.

Contract law is the third major area.It deals with the legal relationship between two （or more） persons when they enter into a transaction or an agreement.Contract law concerns itself with the rights and liabilities between the contracting parties.

Like tort law，the main aim in suing in contract is to seek compensation，although sometimes an injunction may be sought as well （for example，to prevent an employee from leaving to join a competitor）.In addition，exceptionally，a court may give specific performance，that is，order a contracting party to perform his contractual obligation （see Chapter 13），rather than paying damages for not doing it.

Contract law performs three functions — facilitation，regulation and adjudication.It facilitates by setting out the requirements for a valid contract.It regulates by prohibiting parties from certain types of conduct or activities.It adjudicates by deciding，in a given dispute，what is just.Freedom of contract，the right of parties to enter into contracts and on such terms as they wish，is said to be the pillar of contract law and，consequently，contract clauses are generally upheld by the courts.Yet，courts do intervene to invalidate clauses which are inappropriate，such as a clause which unfairly excludes one party’s liability towards the other.For example，if a clause states that one party will only pay a small percentage in damages should problems arise，and from the onset，it is already known that this small percentage will not cover even the basic costs of carrying out the contract.The difficulty is in discerning when courts will and will not intervene.

Criminal law，tort law and contract law form the foundational areas of law.It is not uncommon for countries in Continental Europe to organise their laws into three substantial bodies of law — the Criminal Code，the Civil Code and the Commercial Code.Many other areas of law are added to or built upon this foundation.

Beyond the three core areas，there are numerous important areas and the list includes constitutional law，administrative law，property law，family law，trust law and tax law.In the commercial realm，there is a host of relevant and often interrelated laws，the foremost of which are banking law，agency law （the law on how a person can authorise another person to act on his behalf），corporate law，regulatory law，trade law，intellectual property law and insolvency law.A very substantial period of practice is required for the cultivation of a good commercial lawyer.

It may be noted that in the categorisation of law，one approach is to distinguish public law from private law.Public law deals with the relationship between the government and individuals in a society.Public law includes criminal law，constitutional law，administrative law and tax law.Private law deals with the relationship between individuals.Private law includes tort law，contract law，company law and family law.By the way，although criminal law affects individuals，it is categorised as public law because each crime is，in theory，a wrong done to society.Another distinction is that between substantive law and procedural law.Substantive law deals with rights and liabilities between the parties involved.For example，in both criminal law and tort law，an individual is entitled to be protected against bodily harm，and in contract，a contract party has the expectation that the obligations undertaken will be performed as promised.In contrast，procedural law governs the way legal action should proceed.The main procedural laws are the law of evidence and the rules of court procedure.One expects fairness in the content of the law as well as in the legal process.

There are dozens of areas of law and even a lifetime of practice is insufficient for a lawyer or judge to master all the areas.As such，it seems virtually impossible for a person in modern society not to fall foul of the law in some respect.However，a good grasp of the three core areas is an essential starting point for understanding the law.