Legal System
J.H. Merryman: A Legal System is an operating set of legal institutions, (make execute and interpret for the purpose of Adjusting that dispute legal rules and legal procedures. In this sense, there is one legal system in each of the nations around the world.
Prof. William Tetley: Legal system refers to the nature and content of the Law generally, and structures and methods whereby law is legislated upon, adjudicated upon, and administered, within a given jurisdiction (country/nation-state)
Do you think United Nations has its separate legal system? Do you think European Union has its own legal system?
Public Law: In the words of Montesquieu Public Law is defined:
As far as living in a society is concerned that must be maintained, they have laws concerning the relationship between those who govern and those who are governed. In other words, law governs the relationship between the legal person and the government.
For example Tax Laws, Law of Crime, Constitutional Law, Administrative Law, Labour Laws, etc.
State with each other – Sovereign Function: Function which can only be performed by the state – tax collection, maintenance of law and order (police functions, foreign affairs, lawmaking, law execution, adjudication is also sovereign
Private Law:
In the words of Ulpian: Private law is concerned with the interests of citizens
In the words of Montesquieu, Public Law is defined as thus: they have laws concerning the relationship that all citizens have with one another. Law is governing the relationship of legal persons with each other.
MAJOR LEGAL SYSTEMS IN THE WORLD TODAY
There are three highly influential legal families in the Contemporary World
- Romano-Germanic Family (popularly known as the ‘Civil Law System’)
- Common-Law Family
- Family of Socialist Law
However, these three do not represent all contemporary legal phenomena around the globe.
- This grouping of laws into families, thereby establishing a limited number of types, simplifies the presentation and facilitates an understanding of the world’s contemporary legal systems.
- There are other legal systems also; sharing only some features of these three families. These legal systems are largely based on Religious and Philosophical Principles (Hindu Law, Traditional Legal System of Japan, Far East, Africa (Tribal Laws), China, Middle East (Muslim Law), etc.)
- These three families have numerous variants. Strictly speaking there is no legal system in the world today which has not drawn certain of its elements from one or the
other of these families.
ROMANO-GERMANIC FAMILY ASLO KNOWN AS CIVIL LAW SYSTEM
Meaning of some important terms:
(i) Code: The collection of laws of a country or laws related to a particular subject.
(ii) Codification: The process of compiling and systematizing laws into a code.
Origin: Romano-Germanic family may be defined as that legal tradition that has its origin in Roman Law as compiled in the Corpus Juris Civils of Emperor Justinian and as subsequently developed in Continental Europe and other parts of the world.
Corpus Juris Civilis: Name given to a four-part compilation of Roman Law prepared between 528-534 A.D. by a commission appointed by Emperor Justinian and headed by the Jurist Trabonian.
In its development Scholarly efforts of the European Universities since the 12th Century A.D is also instrumental. These Universities evolved and developed a juridical science based on the compilations of Emperor Justinian.
Term ‘Romano-Germanic’ selected to acknowledge the joint effort of the Universities in of both Latin (Italy, Spain and France) and Germanic countries (Austria, Germany, Netherlands, Switzerland.
MAIN FEATURES
- Legal scholars ascertain and formulate the rules of law. These scholars are less interested in actual administration and practical application of these rules [responsibility of the executive and legal practitioners.
- Law has evolved as essentially private law, as a means of regulating the private relationships between individual citizens. Other branches of law developed later.
- Also, distinctions between private law and public law are sharply drawn with civil codes not typically covering public law.
- In the civil law tradition, judges do not create law. It holds judicial decisions to be secondary and subordinate to codified law.
- Since the 19th Century, most of the countries of this family give special importance to enacted legislation in the form of “Codes”. In other words codes provide the basis of the civil law system
Civil Law is mainly divided into two streams:
(i) the Codified Roman Law
(ii) Uncodified Roman Law
More codes followed for other factors of the legal system: 1806’s Code of Civil Procedure; 1807’s Commercial Code; 1808 Criminal Code and Code of Criminal Procedure;
After the fall of the Napoleonic Empire, caused the adoption of similar codifications, in the form of either direct translations of the French Code or national Codes based on the French Code but with local modifications.
These Codes include: In Europe: Louisiana’s [in USA] civil code (1825), Dutch Civil Code (1838), Romanian Civil Code (1864), Italian Civil Code (1865), Portuguese Civil Code (1867), Spanish Civil Code (1889) & Many countries of Latin America including Bolivia, Chile, Ecuador, Argentina, Colombia also drafted codes on the lines of French Civil Code. The movements toward codification which French Code set into motion also give birth to the German Civil Code of 1896
EXPANSION OF THIS FAMILY
By Colonization: Through colonization by European nations, this family of law has proliferated to many countries
(ii) By Voluntray Reception: Need for modernization or urge to westernize resulted in penetration of continental European ideas.
Outside Europe, these laws although retaining membership in the Romano Germanic family nonetheless have their own characteristics which from a sociological point of view, make it necessary to place tm in distinct groups.
For example:
Muslim Countries: Reception of Romano-Germanic family have been only partial, leaving some legal areas subject to the principles of the traditional, local law. Also some of the original institutions remain in place.
Countries in Far East: Application of Romano-Germanic family of Laws quite different from what it is in Europe. Because an ancient and rich civilization already existed before the reception of Western Law.
African and American Countries: Geographical conditions and population distribution of these countries lead to the development of laws substantially different from European models.
COMMON LAW FAMILY
- PRESIDENT – a court’s judgment or decision that is used as an example or comparison in a future disagreement to justify judging a comparable case or point of law in the same way.
- WRIT – Article 32 to the supreme court and article 266 to the high court give original jurisdiction to exercise the power to issue a writ. A Writ is a court order that compels another individual or authority to act or refrain from acting in a certain manner. As a result, writs constitute a critical component of the Courts’ judicial power.
Origin: Common Law is the legal tradition which originated in England from the 11th century onwards and is based on previous precedent and case laws rather than codified law. Altogether different in its characteristics from the Romano-Germanic family Origins of Common Law is related to king power. Developed as a system in those cases where the peace of the English Kingdom was vulnerable or when some other important consideration required or justified the intervention of royal power. Therefore it looks like to be a public law
Key Features:
It was produced by Judges who had to decide specific disputes. Therefore, it is called a Judge made Law. The Common Law legal rule is one that looks to provide the solution to a trial. The legal rule so made, much less abstract than the legal rule of the Romano-Germanic family. It is usually much more detailed in its instruction comparison to the civil law as its principles appear for the most part in reported judicial decisions of the higher courts.
Law born out of procedure: Matters relating to the administration of justice, procedure, evidence, and execution of judgments have an equal or more importance compared to substantive legal rules. [for example – writ of habeas corpus, trial by jury, fair trial by applying a just and fair procedure] In the formation and development of Common Law, the learning from jus civile played only a minor role
FAMILY OF SOCIALIST LAW
Origins: The Union of Soviet Socialist Republics was founded in 1917 as a result of the Russian Bolshevik Revolution, which was led by Vladimir Lenin. Similarities to the Romano-Germanic family. Members of the Socialist camp are nations that were once part of the Romano-Germanic family and have retained some of their traits. As a result, the legal rule is still understood as a general rule of behavior; division of law and legal language are still products of legal science constructed on the basis of Roman law by European universities.
Distinctive Features/Points of Difference that distinguish this Family from the preceding two:
- Because of its revolutionary nature, the originality of socialist legislation is particularly difficult to detect.
- Ambition of socialist jurists – to overturn society and create the conditions of a new social order in which the very concept ofstate and law will disappear
- Sole source of Socialist Rule of Law resides within the revolutionary work of the legislature, which expresses popular will, narrowly guided by the Communist Party.
- Law is strictly subordinate to the task of creating a new economic structure in which: All means of production have been collectivized, with no or very limited private property rights.
- The field of Private Law is extraordinarily limited as compared to Pre-revolutionary period.
Expansion or Proliferation to other Countries:
- Proliferated to other European, Asian and American Countries by voluntary reception.
- However laws of the Socialist or People’s Republic of Europe, Asia or America be classed as groups distinct from Soviet Laws.
- In Socialist Republic of Europe – a greater persistence of characteristics properly Romano-Germanic is detected.
- In People’s Republic of Asia – Socialist laws reconciled with the rules of existing civilization resulting in a unique class within the Family of Socialist law.
Other Legal Systems:
Muslim, Hindu, and Jewish Laws:
- Law is seen as a model of ideal behavior as written in the religious texts. For example for Muslim Law is based on Quran and Hadith. Similarly Hindu Law is based on the Hindu Religious Scriptures.
- Law as contained in religious scriptures is a mirror of justice. Law is venerated. Courts are temples of Justice.
- in present times in some of the Muslim Countries, true law is found in the text of the Quran and not found in the Legislation, custom or judicial decision.
- In the 21st century, sphere of influence of Hindu Law as found in religious scriptures is comparably much lesser than Muslim Law.
- Sphere of influence of Jewish law is comparably lesser than both Muslim Law and Hindu law
