Modern Legal Systems of the World a comparative

Modern Legal Systems of the World: a comparative analysis A Course by Julia A. Karaulova

Outline of the Course: lectures • Lecture 1. Concept of a Legal System: classification criteria and main families. • Lecture 2. Overview of Common (Anglo. American) Law: history and evolution, basic legal principles and components. • Lecture 3. General Description of Civil (Continental or Romano-Germanic) Law. • Lecture 4. Legal System of the Russian Federation.

Outline of the Course: seminars’ issues • Constitution as a decisive criterion determining the jurisdiction basis of law application. Definition of the concept. Types of constitutions depending on a federal or unitary nature, separation of powers, the presidency, the judiciary, written or oral form; • Common law versus Civil law (based on such comparative criteria as role of judges, constitution, precedent, jury opinion, history, sources of law, role of lawyers and type of argument, evidence taking, etc. Common law versus Equity; • Division of institutions into private and public within Romano-Germanic legal families. The goals and functions of private civil law. General characteristics of public law in Continental law system. The Romance and Germanic subsystems in Civil law. Comparative analysis of the French Code of 1804 (Napoleon Code) and the Germanic Civil Code of 1896; • Basics of public and municipal administration in Russia; the 1993 Constitution of the RF; the 1994 Civil Code of the Russian Federation: history and further evolvements.

Lecture 1. Concept of a Legal System: classification criteria and main families • • • Outline 1) The concept of a legal system; 2) Religious and secular legal systems: a comparative overview; 3) Main families of secular legal systems: Civil (Continental) Law, Common (Anglo-American) Law; 4) Other systems: mixed systems, Nordic Europe, Hindu Law, socialist law, Islamic law, customary laws

Concept of a Legal System • Legal System means jurisdiction’s basis of applying law consists of (1) a constitution, written or oral; (2) primary legislation, statutes, and laws; authorized by constitutionally authorized legislative body; (3) subsidiary legislation or bylaws enacted by primary legislation authorized body; (4) traditional practices upheld by the courts; (5) Civil, common, Roman, or other code of law as source of such principles or practices (Black’s Law dictionary)

Main Components of Legal System • Constitution; • Primary legislation; • Subsidiary legislation; • Customs and judicial practices; • Codes (codified law) depending on a jurisdiction

Division into Religious and Secular Legal Systems Criteria - Source of law; - Scope of law; - Enforcement of law

Main Idea of What Law Is: • Secular systems • Religious systems • law is made by human • deity, legislating beings; through the prophets; • secular rules can be • religious laws are perceived to be eternal changed by their makers and immutable

Law Application • Religious systems • Secular systems • tell people what to believe • deals with our external as well as how to behave; actions as they affect others

Enforcement of Law Religious Systems Secular Systems disputes are usually adjudicated by an the office of judge is separate, and is officer of that religion, so the same often reinforced by guarantees of person is both judge and priest judicial independence The sanctions and rewards of a religious system may also occur in this world, but are often to be felt most keenly in the next Sanctions are imposed in this world, and its severest punishment (the death penalty) amounts to forcible removal from the jurisdiction

Dual Systems are Systems Where • Religious law governs marriage, divorce, family relationships and possibly family property, while a secular system with state courts covers the wider fields of public and commercial law. (e. g. Israel, India, Pakistan). • The Canadian Constitution Act 1982 begins by stating that 'Canada is founded upon principles that recognize the supremacy of God and the rule of law. '

Main Families of Secular Legal Systems • Civil (Continental) Law; • Common (Anglo-American) Law

Differentiation Criteria • • 1) Place and Time of Origin; 2) Historical Foundations; 3) Key Feature; 4) Language; 5) Sources of Law; 6) Type of argument and role of lawyers; 7) Countries

1) Place and Time of Origin • Common Law: • In the Medieval England after the Norman conquest (1066) justices created a common law by drawing on customs across the country and rulings by monarchs. These rules developed organically and were rarely written down. • Civil Law: • The Roman part of the Civil Law, preserved in Justinian’s collection of 533 AD, was rediscovered in the 11 th century in northern Italy, and spread from them throughout continental Europe

2) Foundations • Common Law: • older Saxon law + the custom of the Norman conquerors + rulings of Medieval English kings • Civil Law: • Justinian’s collection of 533 AD (Corpus Juris Civilis) + canon law of procedure + customary family law + Lex Mercatoria or Law Merchant

3) Key Feature • Common Law: • Case law or judge-made law developed by judges through decisions of courts and similar tribunals + based on cases or precedents (stare decisis); • Civil Law: • its core principles are codified into a referable system which serves as the primary source of law

4) Language • Common Law: • The English language (legal Latin is used to a small extent); • Civil Law: • Latin originally, then most European languages

5) Sources of Law • Common Law: • 1. Constitution (not in the UK) 2. Legislation – Statutes and subsidiary legislation 3. Judicial precedent – common law and equity 4. Custom 5. Convention 6. International Law; • Civil Law: • 1. Constitution 2. Legislation – statutes and subsidiary legislation 3. Custom 4. International Law

6) Type of argument and role of lawyers • Common Law: • Adversarial trial. Lawyers ask questions of witnesses, demand production of evidence, and present cases based on the evidence they have gathered. • Civil Law: • Inquisitorial trial. Judges, not lawyers, ask questions and demand evidence. Lawyers present arguments based on the evidence the court finds

7) Countries • Common Law: • USA, England, Australia, Canada, India, former colonies of the British Empire (80 countries) • Civil Law: • Spain, China, Japan, Germany, most African nations, all South American nations (except Guyana), most of Europe (150 countries)

Other Systems • • • - Mixed systems; - Nordic Europe; - Hindu Law; - Socialist law; - Islamic law; - Customary laws

Nordic Europe Law • - troublesome political history; • - Roman law has had less influence in the region than in Continental Europe and the Nordic states do not have systematic codes as compared with those of countries like France and Germany. • There has been a tradition of legislative unification, or cooperation, in the Nordic region since the latter part of the nineteenth century. The work continues within the Nordic Council, which was established in 1952. • Denmark, Finland Sweden are members of the European Union. Iceland applied to join the EU in 2009 and accession negotiations have been in progress since July 2010. Both Norway and Iceland apply a large proportion of EU laws, since they are members of the European Economic Area (EEA).

Hindu Law • Origin: guidelines given in the Vedas (divine nature of law); • Codified law: Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Hindu Minority and Guardianship Act 1956, and Hindu Succession Act 1956. Law Application: Hindu by religion; Hindu by birth; persons who are not Muslim, Christian, Jew, or Parsee by religion; persons who are not governed by any other religious law

Islamic (Sharia) Law • Origin: the actions and words of Muhammad, which are called "Sunnah, " and the Quran, which he dictated; • Applies to public behavior, private behavior and even private beliefs;

Islamic (Sharia) Law • 2 main sections: • 1) The acts of worship (affirmation, prayers, fasts, charity, pilgrimage to Mecca); • 2) Human interaction (financial transactions, endowments, laws of inheritance, marriage, divorce, and child custody, foods and drinks, penal punishments, warfare and peace, judicial matters •

Hindu Law (Cont. ) • Sources of Hindu Law: • 1) ancient sources – ancient literature, local, family, community and caste, guild customs; • 2) modern sources - Equity, Justice, and Good conscience, followed by the privy council while deciding cases; precedent; legislation

QUIZ

PART 1. Choose the right answer:

#1 What is a legal system? • 1) Customs, laws and traditions brought together. • 2) Primary legislation, statutes, and laws; authorized by constitutionally authorized legislative body; • 3) basis of law application within a separate jurisdiction

# 2. Subsidiary legislation means: • 1) Acts and statutes enacted by primary legislation authorized bodies; • 2) regulations, rules, by-laws, etc, made by the certain bodies, under powers conferred by an Act to expand on or supplement such Act; • 3) Civil, common, Roman, or other code of law.

#3. A religious legal system is: • 1) based on deity made by human beings subject to the maxim of stare decisis; • 2) law referring to ethical and moral codes taught by religious traditions; • 3) a system where religious law governs marriage, divorce, family relationships and possibly family property, while state courts cover public and commercial law disputes

#4. Civil (Continental) Law is based on: • 1) Justinian’s Collection, Christian canon law and decisions made by lawyers in the ancient Roman Empire; • 2) legal practices developed by Medieval universities in Northern Italy; • 3) the Roman law, canon law and customary family law

#5. Common Law evolved as a result of: • 1) the Norman conquest and further colonization; • 2) codification of old Anglo-Saxon customs and rules; • 3) rulings of medieval English monarchs and customary family law

#6. What is the basic maxim of common law? • 1) caveat emptor; • 2) stare decisis; • 3) prima facie

#7. What does this maxim mean? • 1) let the buyer beware; • 2) sufficient, unless the opposite is demonstrated; • 3) judge-made law.

#8. Which of three is not codified law? • 1) the laws of Hammurabi; • 2) the collection of Justinian; • 3) ancient Hindu Law

#9. What is the main division within Civil (Continental) Law? • 1) Public and private law; • 2) Common law and Equity; • 3) Civil and criminal law

#10. What statement reflects the basic distinction between inquisitorial and adversarial trial? • 1) Unlike the adversarial system, where the judge is neutral, the judge in the inquisitorial system is the main player, who is expected to conduct the investigation and give his verdict; • 2) In the inquisitorial system, the accused has the right to silence; however, rarely are they allowed to exercise this right, as the main aim of the inquisitorial system is to find the truth through intensive investigation from all components of the criminal justice system including the accused

#11 • Continental civil-law system is characterized by a clear division of institutions into private and public. Private civil law serves the interests of individuals and is built on the principle of equality among them. In turn, public law serves the interests of society as a whole and its main representative - the State. These legal relationships are built on the subordination of one party to another. • A) TRUE • B) FALSE

# 12 • Common law functions as an adversarial system, a contest between two opposing parties before a judge who moderates. A jury of ordinary people without legal training decides on the facts of the case. The judge then determines the appropriate sentence based on the jury’s verdict. • A) TRUE • B) FALSE

# 13 • English common law emerged from the changing and centralizing powers of the king during the Middle Ages. After the collapse of the Roman Empire, medieval kings began to consolidate power and establish new institutions of royal authority and justice. • A) TRUE • B) FALSE

# 14 • Legal scholars in Europe adapted the principles of ancient Roman law to contemporary needs. Medieval scholars of Catholic church law, or canon law, were also influenced by Roman law as they compiled existing religious legal sources into their own comprehensive system of law and governance for the Church. • A) TRUE • B) FALSE

# 15 • The modern countries of both Common Law and Civil Law systems produce large amounts of legislation. In common-law countries basic principles are not enacted. In complete contrast, modern civil law systems tend to think of themselves as 'codified'. The word 'code‘ means that a whole area of law is laid down in one legislative document which aims to provide a closed, coherent and consistent set of propositions which can be applied to solve any dispute in that area. • A) TRUE • B) FALSE

# 16 • While today’s Scandinavia was heavily influenced by the Civil Law of the continent, some scholars would not classify Scandinavian countries as pure Civil Law jurisdictions. • A) TRUE • B) FALSE

# 17 • The modern sources of Hindu Law include Equity, Justice, and Good conscience together with the codified law on marital and family issues. • A) TRUE • B) FALSE

# 18 • Islamic (Sharia) Law is based on the words and acts by Muhammad which are called “Quran”. • A) TRUE • B) FALSE

# 19 • Socialist law is law that started evolving in the 19 th century due to the ideas of Marxism, on the basis of Roman law. • A) TRUE • B) FALSE

# 20 • Legal system refers to a procedure or process for interpreting and enforcing the law. It elaborates the rights and responsibilities in a variety of ways. Three major legal systems of the world consist of civil law, common law and religious law. • A) TRUE • B) FALSE

KEYS to QUIZ • • • • • #1 // 3; #2 // 2; #3 // 2; #4 // 3; #5 //1; #6 // 2; #7 // 3; #8 // 3; #9 // 1; #10 // 1; #11 // A; #12 // A; #13 // B; # 14 // A # 15 // B (constitutions in Common Law countries are codified law) # 16 // A # 17 // A # 18 // B (the words and acts by the Prophet are called “Sunnah”, and the “Quran” is what he dictated; # 19 // B # 20 // A

PART 2. DEFINE THE TERMS

# 21. Define the terms on your own: • Canon law means: • • Civil law means: • • Code means:

KEYS • Canon law – the body of laws that govern the Catholic Church and its members, deriving from the decrees and rules (“canons”) made by the pope and ecclesiastical councils. • • Civil law – the system of law that emerged in continental Europe beginning in the Middle Ages and is based on codified law drawn from national legislation and custom as well as ancient Roman law. • • Code – the collection of laws of a country or laws related to a particular subject.

# 22. Define the terms on your own: • Codification means • • Common law means • Corpus Juris civilis means

KEYS • Codification – the process of compiling and systematizing laws into a code. • Common law – the system of law that emerged in England beginning in the Middle Ages and is based on case law and precedent rather than codified law. • Corpus Juris civilis – meaning “body of civil laws, ” the name given to the compilation of Roman law ordered by the Byzantine emperor Justinian I in 529 CE.

Questions to Answer & Issues to Comment On: • 1) What is a legal system? • 2) What basic components does it include? • 3) Explain what “primary legislation” means. Give examples of your national jurisdictions. • 4) What is subsidiary legislation? Give examples of your own. • 5) Identify mail legal families existing globally and the relevant classification criteria.

Questions to Answer & Issues to Comment On : • 6) Describe religious legal systems in general. Name the countries belonging to such legal systems. • 7) Can Israel be characterized as a religious legal system? • 8) Specify the main distinctions between Common Law and Continental Law systems. • 9) Speak on the origin of Common Law and/or Continental Law.

Questions to Answer & Issues to Comment On : • 10) What are legal foundations for Common Law and/ or Civil (Continental) Law? • 11) What is an inquisitorial trial? In what legal systems is it applied? • 12) Describe the nature of “adversarial trial”. What jurisdictions use this type of trial? • 13) Speak on “public versus private law” division. • 14) Common Law versus Equity: what this dichotomy means?

Questions to Answer & Issues to Comment On : • 15) Identify the other legal systems existing globally in addition to Common Law and Continental Law. • 16) Provide a brief description of Nordic Europe (Scandinavian) Law. • 17) Specify the key features of Islamic (Sharia) Law. • 18) What is Hindu Law?

That is the end, guys! Relax and enjoy yourselves!