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Legal Systems of the World

Module III

Nidhi Hriday Buch 1
1/8/2018

Meaning of Legal System
 A system for interpreting and enforcing
Laws.
 It is a systematic arrangement of norms
organized in primary and secondary layers
for the purpose of governance.

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Classification of legal Systems

Common Law

Civil Law

Islamic Law
(Religious/Theocratic in nature)

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1/8/2018 Nidhi Hriday Buch 4 . rather than different sets of laws used by individual communities or tribes.  The name derives from the fact that it was one set of laws "common" to the whole kingdom.Common Law System  This system developed from a set of traditional laws first brought together in England around the 12th Century.  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.

 Developed based on the outcomes of individual court cases.  Each court case provided a basis for judging the next case of a similar nature. 1/8/2018 Nidhi Hriday Buch 5 .Essential Features  Developed through usage rather than being imposed by codified legislation as with the civil code system.

a constitution.  It develops case law through judgments and precedents.  Crimes are punished and civil wrongs are rectified by compensation.  It is adversarial.Core Principles  The rights of the individual exist alongside those of the state.in most cases .  Case law co-exists with statute law and . 1/8/2018 Nidhi Hriday Buch 6 .  It has a presumption of innocence.

 This system if less prescriptive than a civil law system.  Judicial decisions are binding  Extensive freedom of contract  Generally. 1/8/2018 Nidhi Hriday Buch 7 .Features  There is not always a written constitution or codified laws. everything is permitted that is not expressly prohibited by law.

 Countries following a common law system are typically those that were former British colonies or protectorates. including the United States. 1/8/2018 Nidhi Hriday Buch 8 .

ADMINISTRATIVE . JUDICIAL.Conclusion  IT IS RESPONSIVE TO THE PRESSURES OF DAILY LIFE AND DOES NOT HAVE A RIGID FRAMEWORK  IT IS MORE PRAGMATIC & ACCOMMODATIVE  IT IS INDUCTIVE IN NATURE: GRADUALLY ARRIVING AT A RULE FROM CONSIDERATION OF NUMEROUS PARTICULAR INSTANCES  EVOLVED A CLASSIC SYSTEM OF PRECEDENTS & CASE LAWS  COURTS PLAY A VITAL ROLE IN CREATING LAW  IT IS ALWAYS OPEN TO LEGAL. COMMON MAN’S SCRUTINY 1/8/2018 Nidhi Hriday Buch 9 .

Civil law  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. 1/8/2018 Nidhi Hriday Buch 10 .

1/8/2018 Nidhi Hriday Buch 11 .  Indeed. brought together). Continental law or Napoleonic law.Civil Law Systems  This is the most common type of legal system in the world. not from court cases. They are distinguished from common law mainly because they come from parliaments. in civil code systems the courts do not usually have as much freedom to interpret laws. either in its pure form or as a basis upon which other elements such as religious law are added.  All are systems where laws are legislated by parliament or some other form of representative government and codified (i.e.  The civil code or civil law system is also called by other names such as Roman law. In the original Napoleonic courts judges were specifically banned from interpreting statute laws.

 The term civil law derives from the Latin jus civile. it was rediscovered and made the basis for legal instruction in eleventh-century Italy and in the sixteenth century came to be known as Corpus juris civilis. the law applicable to all Roman cives or citizens.  While this compilation was lost to the West within decades of its creation. 1/8/2018 Nidhi Hriday Buch 12 .  Its origins and model are to be found in the monumental compilation of Roman law commissioned by the Emperor Justinian in the sixth century CE.

1/8/2018 Nidhi Hriday Buch 13 . were also influenced by Roman law scholarship as they compiled existing religious legal sources into their own comprehensive system of law and governance for the Church.  Medieval scholars of Catholic church law. and higher learning. Succeeding generations of legal scholars throughout Europe adapted the principles of ancient Roman law in the Corpus juris civilis to contemporary needs. politics. an institution central to medieval culture. or canon law.

It offered a store of legal principles and rules invested with the authority of ancient Rome and centuries of distinguished jurists. civil and canon. By the late Middle Ages. were taught at most universities and formed the basis of a shared body of legal thought common to most of Europe. these two laws.  The birth and evolution of the medieval civil law tradition based on Roman law was thus integral to European legal development. and it held out the possibility of a comprehensive legal code providing substantive and procedural law for all situations 1/8/2018 Nidhi Hriday Buch 14 .

1/8/2018 Nidhi Hriday Buch 15 .directing investigations. challenging evidence and even - in some cases .  Judges in civil code trials are usually more active in questioning witnesses. This is quite different to common law trials where the judge is supposed to play a role of a moderator. not make them. Judges are there to administer laws.  Laws are codified  Civil code systems are mainly inquisitorial rather than adversarial.Core Principles  The underlying principle of civil code systems is that the laws applied to citizens are made by citizens through their political representatives.

many countries have subsequently built it into their systems by adopting external or international obligations.Presumption of Innocence  Although the presumption of innocence is not usually stated explicitly in civil code laws. most European countries have ratified the European Convention on Human Rights which guarantees the right to a fair trial and the presumption of innocence. 1/8/2018 Nidhi Hriday Buch 16 . Thus these principles have become part of their national laws.  For example.

especially when judges have a strong role in hunting down the "truth' in a case rather than arbitrating between two adversarial parties. however.Trial by Jury  Trial by jury is less common in inquisitorial systems. Spain and Brazil. mainly criminal. Norway.  Juries are. 1/8/2018 Nidhi Hriday Buch 17 . used in some civil code countries such as France. albeit usually for a limited range of offences.

 Countries following a civil law system are typically those that were former French. Also. Dutch.  The civil law system is a codified system of law. 1/8/2018 Nidhi Hriday Buch 18 . German. Spanish or Portuguese colonies or protectorates. It takes its origins from Roman law. most of the Central and Eastern European and East Asian countries follow a civil law structure. including much of Central and South America.

administrative law is however usually less codified and administrative court judges tend to behave more like common law judges. Germany. writings of legal scholars have significant influence on the courts.Features of a civil law system  There is generally a written constitution based on specific codes (e. tax law and constitutional law) enshrining basic rights and duties.  In some civil law systems. 1/8/2018 Nidhi Hriday Buch 19 . civil code.g..g. codes covering corporate law. e.. administrative law.  Only legislative enactments are considered binding for all.

1/8/2018 Nidhi Hriday Buch 20 .  Less freedom of contract . administrative court and civil court systems that opine on consistency of legislation and administrative acts with and interpret that specific code.many provisions are implied into the contract by law and parties cannot contract out of certain provisions.  A civil law system is generally more prescriptive than a common civil law system. Courts specific to the underlying codes – there are therefore usually separate constitutional court.

 NOT AN OPEN SYSTEM-LESS SCOPE FOR REVIEW  GROWTH THROUGH LEGISLATION RATHER THAN LITIGATION 1/8/2018 Nidhi Hriday Buch 21 . PRINCIPLES ETC. Conclusion  ARTIFICIAL CREATION BY LAW MAKERS AND ACADEMICANS  MORE EMPHASIS ON AUTHORITY THAN ON THEORIES.

Major areas of Differences between Civil law and Common law legal systems  Common Law  Civil Law  Adversarial System  Inquisitorial System  Written Constitution  Written Constitution is may not be there always always there  Judicial decision is binding  Not binding  Influence of writings of legal scholars is limited  Great influence  Existence and growth of  Existence and growth of equity equity  Legal reasoning :  Legal reasoning : inductive deductive 1/8/2018 Nidhi Hriday Buch 22 .

1/8/2018 Nidhi Hriday Buch 23 .  Although throughout history many countries have had legal systems based wholly or partly on religious laws and teachings. today by far the most common are those aligned to Islam.Religious System  Here we are not talking of laws governing the religious practices of believers but of a country's legal system being based on religious laws which apply to people as citizens in both their private and public lives.

in more than fifty-five Muslim countries and in a number of non-Muslim countries.ISLAMIC LEGAL SYSTEM  Islamic law is one of the three major legal systems of the world after common law and civil law systems.  Muslim countries in the Middle East still have significant influence in the development and application of Islamic law throughout the world. at least in part. It is applicable.  Islamic law originated in the Middle East in the late sixth century and developed mainly in that region. 1/8/2018 Nidhi Hriday Buch 24 .

ISLAMIC LEGAL SYSTEM  Gives practical expression to the religious faith and aspirations of the Muslims.  Total and unconditional submission to the will of Allah  Only the law which is associated with religion alone reflects the will of Allah  The Islamic law is a comprehensive code of behavior. 25 .

It provides rules on how practising Muslim should live their lives. 1/8/2018 Nidhi Hriday Buch 26 .  Islamic law (Sharia) is based on the Qur’an and Sunnah. supplemented by interpretations over the centuries by Muslim scholars and jurists. The Sharia comes from the Qur’an. which Muslims consider the actual word of God. the sacred book of Islam.Islamic law  Sharia. Islamic law is still evolving and there are still disagreements about exactly what makes up Sharia and its scholarly interpretations (Fiqh)." refers to traditional Islamic law. an Arabic word meaning "the right path.  Like common law and civil code law.

business contracts. banking. It is the legal framework within which the public and private aspects of life are regulated for those living in a legal system based on Islamic Shari’ah. including diet. economics. 1/8/2018 Nidhi Hriday Buch 27 .Shari’ah is the body of Islamic Law. It deals with every aspects of day-to-day life. politics. and social issues. family. hygiene.

Islamic law addresses. 1/8/2018 Nidhi Hriday Buch 28 . The body of law based on the Qur’an and Sunnah distinguished by Islam and Muslims in their application. both civil and criminal justice as well as regulates individual conduct both personal and moral. as Shari’ah law.

however. some fundamental differences in areas such as individual rights and equality before the law.  There are.ISLAMIC LEGAL SYSTEM  Islamic law shares some similarities with common law. with current judgments based on precedents and the analysis of previous cases of a similar nature. 1/8/2018 Nidhi Hriday Buch 29 . principally the fact that it has evolved through application. especially in the treatment of women.

The Distinctive Features of Islamic Shari’ah:  It is designed by God: Allah.  It governs every aspect of human life.  It governs state and citizens both  The ruler. is an implementer. in this system. There is no division of secular and religious concept. 1/8/2018 Nidhi Hriday Buch 30 .

and Qiyas: Drawing analogy from the essence of divine principles and preceding rulings.Sources of Islamic Law The primary sources of Islamic law are the Qur’an and Sunnah. 1/8/2018 Nidhi Hriday Buch 31 . There are two supplementary sources: Ijmaa’: the consensus of Islamic jurists on certain issues.

law scholars use Qiyas: various forms of reasoning. and others are also accepted as secondary sources where the first four primary sources allow. 1/8/2018 Nidhi Hriday Buch 32 . The consensus of the community or people. public interest. In situations where no concrete rules exist under the sources. including by analogy.

law and politics is prohibited. however the ultimate authority remains their constitutions and the rule of law.  Modern or secular Sharia law being followed in secular Muslim countries like Mali. Kazakhstan and Turkey. Indonesia. Nigeria. Afghanistan.  Countries having mixed kinds of laws are Pakistan. however these are greatly under the influence of Sharia. These Islamic countries possess legal systems of their own. Morocco and Malaysia. Sudan. 1/8/2018 Nidhi Hriday Buch 33 . Egypt.Islamic Legal System in 21st Century  Spectrum of Muslim legal systems in the 21st century. Role of Sharia is limited to personal and family matters. Religious interference in the matters of state.  Different groups among Muslims hold different perspective regarding the fundamental Sharia law.

Important point to note here is that Iran shares some of these characteristics. however it also have got parliament that legislates in a manner consistent with Sharia. These countries include Saudi Arabia and Gulf countries that have got its constitutions or legislatures and where the state head have got some authority to change laws. 1/8/2018 Nidhi Hriday Buch 34 .Islamic Legal System in 21st Century  Hardcore Muslim countries having traditional perspective on Sharia law. because they are derived from Sharia law as it is interpreted by their religious scholars.