Legal Systems Research Paper

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A legal system is a mechanism for creating, interpreting, and enforcing laws in a given jurisdiction. The major legal systems in  the  world include  civil law, common  law, socialist law,  religious law,  and  customary  law.  Most nations have incorporated aspects of some or all of these systems, or developed variations on each system, into their own legal system.

Civil Law

The civil law system is the predominant legal system in the world. It developed out of Romano-Germanic law— the law of continental Europe—based on a mixture of Roman, Germanic, ecclesiastical, feudal, commercial, and customary law. The beginnings of the civil law tradition can be traced to the Twelve Tables, written in 449 BCE, which laid the  foundation  for Roman  law and  would eventually become one of the most advanced systems of law in history.

Following the  rise of  the  nation-state  system in Europe, natural or civil codes were established in several countries, including France, Spain, Germany, and several Latin American and East Asian countries. The purpose behind the civil codes was to create a unified system of laws or statutes derived from basic principles and upon which  judicial decisions are  based. Perhaps  the  most widely known civil code is the Napoleonic Code established in France in 1804, which is the foundation for the civil law systems of Quebec and Louisiana. The German Civil Code, too, provides the legal foundation for the civil law systems of the former Soviet bloc countries, Japan, South Korea, China, and Taiwan. Most of Latin America also uses the civil law system as a result of the influence of its former colonial masters in Europe.

A distinguishing feature of the civil law system is that it is based on the idea of flexibility and judicial discretion in interpreting the law. Different schools of judicial interpretation exist in most civil law countries, and the law tends to be a product of these competing schools. Judicial disregard of precedent is considered to be a strength of the civil law system because it allows for alternative interpretations of the law that may be more compatible with the facts and circumstances of a particular case. One of the results of this more flexible approach in applying the law is that judicial opinions tend to be more concise, as courts discuss only the  relevant legislation that  applies rather than detailing how a decision was reached. However, the civil law system is still subject to the vagaries and uncertainties of judge-made law where the role of precedent has little influence.

Common  Law

Common law systems can be found in many nations that were former colonies or territories of England. The common law originated with the unification of England and the institutional stability provided by William the Conqueror  (c. 1027–1087)  after 1066.  In  1215  King John (1167–1216) elevated the importance of the common law at Runnymede when he signed the Magna Carta. The Magna Carta freed the church, localized the court system, and codified the basic principles of the common law. By the sixteenth century, the common law system had supplanted the civil law system in England, and over time it would become more reliable as a consistent record of case law for judges and lawyers developed.

An important aspect of the common law is the role of precedent or the principle of stare decisis (“let that stand which has been stated”). The common law represents the law as expressed by judges in the form of judicial decisions based on precedent rather than  statutes. These judicial decisions, if issued by the highest court in a jurisdiction, are binding on all other lower courts within that same jurisdiction. To  ensure predictability in  the  law, high courts are expected not to overturn their own precedents in the absence of strong justification. Though new rules are adopted from time to time and judicial decisions can be overturned, these new rules or decisions also become binding precedents, thus restoring certainty to the law.

In the early twenty-first century, every state in the United States, except Louisiana, utilizes the common law system. Most state statutes provide that the common law, equity, and  statutes in  effect in  England  in  1603  be deemed part of the law of the jurisdiction. The common law system also constitutes the basis of the legal systems of Canada  (except  for  Quebec),  Australia, Hong  Kong, India, Malaysia, New Zealand, and South Africa, among other nations. Each of these common law jurisdictions recognizes the importance of the adversarial system and the fundamental principles of law that have been adopted over the centuries by way of custom and precedent.

Socialist Law

Socialist law is the legal system used in most Communist states. It is based on the civil law system and MarxistLeninist ideology. During  the  cold war period,  it  was incorporated into the legal systems of the Soviet Union and  its  former  satellite states in  Central  and  Eastern Europe. These systems were built on the notion that the state, rather than private individuals, should own most of the property within its jurisdiction.

When the cold war ended and the Soviet Union collapsed in  1989,  support  for  the  socialist legal model waned considerably. Some states, such as China, Cuba, Vietnam, and  North  Korea, continue  to  practice their own version of socialist law; however, most of these states have modified their legal systems in response to the growing popularity of market-oriented reforms and the inevitable forces of globalization.

Religious Law

Religious law is based on the sacred texts of religious traditions,  which  advocate norms,  principles,  or  rules  as revealed by God that are intended to govern human behavior. Most of the major religions of the world, including Islam, Christianity, and Hinduism,  espouse a particular code of ethics or morality that is believed to be required by God and necessary to promote justice within a state. Many nations incorporate religious law into their national legal systems and, in some cases, there is no separation between religion and the state in administering these systems.

Islamic law, or sharia, is based on the Qu’ran, the primary source of Islamic jurisprudence, and  the  sunna, which purportedly incorporates the practices of the Prophet Muhammad (c. 570–632). Muslims believe that there is no distinction between religious and secular life and, therefore, national laws should reflect Islamic principles. Nations practicing some version of Islamic law in 2007  include  Afghanistan, Saudi  Arabia, Iran,  Iraq, Pakistan,  Indonesia,  Libya, Morocco,  Algeria, Turkey, Egypt, Kuwait, Tunisia, Syria, Sudan, Mauritania,  and Lebanon, to name a few.

Canon law is a legal system developed by the Catholic Church  and based on the Bible, the foremost source of Christian law. The Code of Canon Law has been compiled, organized, and revised over the centuries to reflect changes in the Catholic Church’s hierarchical, administrative, and judicial practices. Today, the canon law system, which consists of its own courts, judges, lawyers, and legal code of ethics, makes up the legal system of the Vatican in Rome.

Hindu law is a body of rules and principles set forth in the Manu Smriti and practiced by the Hindus. It is one of the oldest religious systems in the world and is characterized by beliefs and practices rooted in ancient Vedic culture. Hinduism is the third-largest religion in the world, and its followers are concentrated  mainly in  India.  During  the occupation of India by the British, Hindu  law was recognized by the British government, but it has been corrupted by the imposition of British common law and secularization.

Other major religious legal systems include the Baha’i faith (Iran), halacha (Jewish law), Buddhist law (Tibet and Southeast Asia), and Confucian law (China).

Customary Law

Customary law is law developed from the bottom up. It consists of established patterns of behavior that are capable of being observed, and it gives rise to expectations that guide people’s actions. An important feature of customary law is that it is not imposed, or handed down, by some coercive institution or individual, but is instead created through mutual recognition and acceptance. Customary law consists of two elements: (1) an observable practice; and (2) a conception that the practice is required by or consistent with a prevailing norm  (opinio juris). Customary international law is a type of customary law that refers to the “law of nations” and the rules developed over time as a result of state practice and opinio juris.

Bibliography:

  1. Benson, Br 1990. The Enterprise of Law: Justice without the State. San Francisco: Pacific Research Institute for Public Policy. Glendon, Mary Ann, Michael Wallace Gordon, and Christopher Osakwe. 1985. Comparative Legal Traditions: Texts, Materials,
  2. and Cases on the Civil Law, Common Law, and Socialist Law Traditions with Special Reference to French, West German, English, and Soviet Law. S Paul, MN: West.
  3. Hogue, Arthur. [1966] Origins of the Common Law. Indianapolis, IN: Liberty Fund.
  4. Merryman, J 1985. The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America. 2nd ed. Stanford, CA: Stanford University Press.
  5. Plucknett, Theodor 1956. Concise History of the Common Law. 5th ed. Boston: Little, Brown.
  6. Souaiaia, Ahmed. Islamic Law and Government. Lincoln, NE.: Writers Club Press.
  7. Zubaida, S 2003. Law and Power in the Islamic World. London: Tauris.

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