Presentation on theme: "Major legal systems. Three major legal systems The three major legal systems of the world today consist of – Continental legal system (civil law) – Anglo-American."— Presentation transcript:
Major legal systems
Three major legal systems The three major legal systems of the world today consist of – Continental legal system (civil law) – Anglo-American legal system (common law) – Religious legal systems Each country often develops variations on each system or incorporates many other features into the system.
Continental legal system It is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not determined, as in common law, by judges. The principle of this system is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow. It is the most prevalent and oldest surviving legal system in the world. Continental legal system is sometimes inappropriately referred to as Roman law or otherwise called Romano-Germanic law, especially by people under its jurisdiction.
History The civil law system is based on Roman law, especially the Corpus Juris Civilis of Emperor Justinian, as later developed by the Middle Ages The acceptance of Roman law had different characteristics in different countries. In some of them its effect resulted from legislative act - it became positive law, whereas in other ones it became accepted by way of its processing by legal theorists. A second characteristic, beyond Roman law foundations, is the extended codification of the adopted Roman law - its inclusion into civil codes. The concept of codification dates back to the Code of Hammurabi in ancient Babylon.
Codification The concept of codification was further developed during the 17th and 18th century, as an expression of both Natural Law and the ideas of the Enlightenment. The political ideal of that era was expressed by the concepts of democracy, protection of property and the rule of law. That ideal required the creation of certainty of law, through the recording of law and through its uniformity. So, the mix of Roman law and customary (local) law ceased to exist, and the road opened for law codification, which could contribute to the aims of the above mentioned political ideal. The French Napoleonic Code of 1804, Austrian civil code of 1811 and the German civil code of 1900 were the most influential national civil codes.
Subgroups However, since continental European traditions are by no means uniform, scholars of comparative law usually subdivide civil law into four distinct groups: French civil law – in France, Belgium, Luxembourg, Quebec (Canada), Louisiana (USA), Italy, Spain and former colonies of those countries German civil law – in Germany, Switzerland, Brazil, Portugal, Turkey, Japan, South Korea, China Austrian civil law – in Austria, Czech republic, Slovakia, Greece, Serbia, Romania Scandinavian civil law – in Sweden, Denmark, Finland, Iceland, Norway
Anglo-American legal system Common law is law developed by judges through decisions of courts and similar tribunals (called case law), rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law. Common law legal systems are in widespread use, particularly in England where it originated in the Middle Ages, and in nations that trace their legal heritage to England as former colonies of the British Empire, including the United States, Singapore, Pakistan, India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong and Australia
History of the common law The term "common law" originally developed after the Norman Conquest of England The "common law" was the law that the whole country had in common, rather than particular tribal laws that might apply between smaller communities The doctrine of precedent developed under the inquisitorial system in England during the 12th and 13th centuries Equity is the name given to the set of legal principles, in jurisdictions following the English common law tradition, which supplement strict rules of common law where their application would operate harshly
Basic principles of common law The common law is more flexible than statutory law Common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy The common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects
Interaction of statutory and case law In almost all areas of the law (even those where there is a statutory framework, such as contracts for the sale of goods or the criminal law), legislature- enacted statutes generally give only terse statements of general principle, and the fine boundaries and definitions exist only in the common law In common law jurisdictions, legislatures operate under the assumption that statutes will be interpreted against the backdrop of the pre-existing common law and custom
Religious legal systems Religious law refers to the notion of a religious system or document being used as a legal source The main kinds of religious law are Sharia in Islam, Halakha in Judaism, and Canon law in some Christian groups
Islamic law The Islamic legal system of Sharia (Islamic law) and Fiqh (Islamic jurisprudence) is the most widely used religious law, and one of the three most common legal systems in the world alongside common law and civil law. Mainstream Islam distinguishes between fiqh (deep understanding, discernment), which refers to the inferences drawn by scholars, and sharia, which refers to the principles that lie behind the fiqh.
Origins of Islamic law Sharia Law is founded on the teachings of Allah and the acts and sayings of Muhammad as found in the Qur'an and the Sunnah. Sharia was not fully developed at the time of Muhammad's death, but rather it evolved around the Muslim community Before the 19th century, legal theory was considered the domain of the traditional legal schools of thought. The legal schools followed by most Sunni Muslims were Hanafi, Hanbali, Maliki or Shafi`i. Most Shia Muslims followed the Ja'fari school of thought
Division between Shia and Sunni The division between Shia and Sunni dates back to the death of the Prophet Muhammad, and the question of who was to take over the leadership of the Muslim nation. Sunni Muslims agree with the position that the new leader should be elected from among those capable of the job. Shia Muslims have not recognized the authority of elected Muslim leaders, choosing instead to follow a line of Imams which they believe have been appointed by the Prophet Muhammad or God Himself Sunni Muslims make up the majority (90%) of Muslims all over the world. Significant populations of Shia Muslims can be found in Iran and Iraq
Sources of Islamic law I. The primary sources of Islamic law are the Qur'an and Sunnah. Sharia has certain laws which are regarded as divinely ordained, concrete and timeless for all relevant situations. It also has certain laws which derived from principles established over time by Islamic lawyers Traditional Sunni Muslims also add the consensus (ijma) of Islamic jurists (ulema) on certain issues, and drawing analogy from the essence of divine principles and preceding rulings (qiyas).
Sources of Islamic law II. Shia jurists maintain that if a solution to a problem can not be found from the primary sources, then reason should be given free rein to deduce a proper response from the primary sources – the process is called „ijtihad“ (literally meaning "exerting oneself") The term „urf“ refers to the customs and practices of a given society - although this was not formally included in Islamic law, the Sharia recognizes customs that prevailed at the time of Muhammad but were not abrogated by the Qur'an or the tradition
Socialist law Socialist law is the official name of the legal system used in Communist states. It is based on the civil law system, with major modifications and additions from Marxist-Leninist ideology Prior to the end of the Cold War, Socialist law was generally ranked among the major legal systems of the world However, many contemporary observers no longer consider it to be such, due to similarities with the civil law system and the fact that it is no longer in widespread use following the dismantling of most communist states.
Mixed legal systems Mixed legal systems are mostly defined as the combination of civil law and common law Examples - South Africa, Louisiana, Israel Israel's legal system combines English common law, civil law, and Jewish law Legal enclaves – territories surrounded by different legal culture