3 Legal Systems: A comparison

Dr. Aruna Sri Lakshmi

INTRODUCTION

Contemporary comparative law is part of the emergent humanistic awareness of the significance of cultural relativity in the limited shared resources of the world.1 A legal system may be defined as the legal rules and institutions of a given country called as, an Indian legal system, French legal system or German legal system.

In a broader sense, legal system is the juristic philosophy and techniques shared by a number of nations with broadly similar features of a legal system i.e., English common law system, or Civil Law system. A student of law need to have a comprehensive idea of various legal systems existing in the world wherein a group of jurisdictions are classified under a generic heading by virtue of having similar characteristics. It has been rightly pointed out by Paton2 that it is impossible to conceive jurisprudence without comparative law since all schools of law whether philosophical, sociological or analytical rely on the comparative research methodology.

The study of jurisprudence begins with the premise that jurisprudence is a science as was first stated by Ulpian, the Roman jurist. He defined that “jurisprudence is the knowledge of things human and divine and the science of just and unjust.”It is further given a more scientific definition by John Austin that “jurisprudence is the science of positive law”. Holland defined that “jurisprudence is the formal science of positive law.” According to Salmond “jurisprudence is the science of civil law” i.e., the law of the land, of a given legal system. According to him it may be a general jurisprudence or particular jurisprudence. The subject has different approaches to understand the nature of law in the era of globalisation, and the study of comparative legal system gives an insight into the functional aspect of it.

CONTEMPORARY SIGNIFICANCE OF THE STUDY OF LEGAL SYSTEMS

The importance of the study of the systems of law and its comparison gained significance on account of the catchphrase of ‘Global village’ or ‘one world’, in the international context. It is a concept that any legal system should take into account, different laws of different nations

1  Stephens  C. Hicks,  The  Jurisprudence  of Comparative  Legal  Systems,  6  Loy.L.A.Int’l  &Comp.L.  Rev.

83(1983).

2 Paton G.W., A Textbook of Jurisprudence, 1972, Clarendon Press, pg.41.

of the world for effective development of law. The study of the systems can be viewed in different dimensions. Firstly at the international level, secondly in the domestic law arena and thirdly in social science terms.

At the international level, it provides for international understanding. The study of different legal systems goes a long way in improving the relation between the nations like, International Trade law. Similarly preparation of international conventions has necessitated reference to the laws of many countries namely the law of international sale of goods, shipping and transport and international Bill of Exchange etc. It brings uniformity in the legal systems like under international law uniformity is achieved in the Law of Sea. Similarly, the Hague Convention on the Uniform Laws on International Sale of Goods and the work of UNICITRAL indicate measures undertaken in the verification and harmonisation of Law.

At the domestic front, the study of legal systems would aid in providing model laws at national level. For example the notion of income tax which originated in England was imitated by German legislators. The Anti-Trust laws of Austria have inspired the German Cartel law. Criminal law and Bankruptcy law reforms in Germany have been based on extensive and comparative research. Also examples of private international law and commercial areas include illegitimacy, divorce, personality and vicarious liability.

In social and societal terms, it promotes clarification and simplification of the law and its better adaptation to social needs to secure better administration of justice.

Thus the aim, function and purpose of study of legal systems may be summarised thus:

i)  As an academic discipline, the knowledge of legal systems will broaden the perception of the operation of legal rules in different legal systems and provide for solutions to legal problems

ii) The second important function is the legislative reform.

iii) Harmonization and unification seeks to effect an approximation or coordination of different legal provisions or systems by elimination of major differences and creating minimum requirements or standards.

It is pertinent to note that there are broadly three major legal systems from where all legal systems draw their source and authority.

MAJOR LEGAL SYSTEMS/PARENT LEGAL FAMILIES

Comparative law is classified into families by the functional similarity. The concept of legal families was outlined by Montesquieu. The legal systems of the world are placed into two main types of parent legal families out of the forty two legal systems existing. Most legal systems in the world possess the characteristics, predominantly identified with the major legal systems or parent legal families. A legal system comprises of number of legal traditions which represent the heritage of that particular jurisdiction.3

a) Civil law system

b) Common law system

c) Socialist Legal System4

However, the civil law system and the common law system are recognised to be the most influential legal systems.

JURISTIC STYLE

The style of a legal system is crucial test that determines classification of a legal system. Any legal system strengthens through five basic factors. The ascertaining factors of a legal system include-

1. Historical background and development– It is to be borne in mind that each legal family has a chequered history which reflect the influence on a legal system
2. Its characteristic mode of thought – It is the mode of thought existing in a given legal system that has a bearing. For example civil law system is rule based and constantly seeks to find solutions to a problem before the court contrary to the socialist law which is based on Marxist- Leninist ideas.
3. Its distinctive institutions– In every legal system there are certain distinctive features which are developed and peculiar to their system. To

3 It is pertinent to mention that a ‘legal tradition’ has been defined as a set of deeply rooted historically conditioned attitudes about the nature of the law, the role of law operating in a given society, and the political ideology, the organisation and operation of a legal system.

4   The Socialist Laws make up a third family distinct from the civil and common law system, lost relevance on account of social disintegration of Soviet Union and demise of communism throughout Eastern Europe and hence the discussion is confined to civil and common law system only.

illustrate in common law jurisdictions, the typical legal institutions are agency, the trust, tort principles consideration and estoppel.

4. Sources of law-Sources of law distinguishes the system of law existing and the predominant principles that determine the source of law. In civil law countries like, France and Germany is still a predominantly codified or enacted law, where as in common law countries it is the case law.

5. Ideology of a Legal System: Zweigert and Kotez interpret ideology of a legal system as meaning ‘Political or Economic doctrines or religious belief.’ It is this ideology that places them under- different categories due to their uniqueness.5

As stated earlier a legal system comprises of a legal tradition and legal culture.6

Juristic styles of legal systems

CIVIL LAW SYSTEM

5  For example, Countries such as China, Mongolia, North Vietnam, North Korea, Russia until recently have adopted a communist theory of law based on Marxist-Leninist philosophy. Similarly legal systems such as Hindu and Muslim systems justify separate categorization as religious, legal systems in view of their uniqueness.

6 Legal culture is the ideas, values, expectation and attitudes towards law and legal institutions which public hold well.

The term Civil Law is derived from the Latin word “jus civile”, by which the Romans designated the laws that only the Roman citizens or “cives” were originally privileged to enjoy. It is sometimes said that the countries of civil law are those which received legal system from the Roman Law.7 In civil law systems, the substantive body of private law consists, principally of civil law, which is further subdivided into various divisions of law, such as the law of persons, family law, matrimonial property regimes, property law and the law of obligations. In civil law systems it should be noted that commercial law is not regulated by the French Civil Code. It is a distinct body of law which is administered by separate commercial courts.

Roman Law was the starting point for the systematic study of Western Legal System. There were two phases during which Roman Law developed.

1. The period of compilation by Emperor Justinian(AD 527 -565).
2. The revival of Roman Law (where Justinian works were studied by the Italian universities during 11th century.)

It must be borne in mind that within the civil law tradition, there is French Law Tradition and German Law tradition which are based on the Roman law. The French law tradition is based on rigid separation between private law and criminal law and public law and administrative law. The French law tradition has an influence on Germany due to various historical reasons like lack of unity within Germany and lack of written law and fragmented legal order etc., Therefore, Germany adopted Roman law.

KEY FEATURES OF CIVIL LAW SYSTEM

1.  Codification- Codification is the distinct feature of the Civil law system. The civil law put high the value of the codes which can be reckoned to the first landmark Code, i.e .,the Twelve Tables (451-450 BC)in the history of Roman law. It was a collection of basic rules, which was considered as the fountain head of all public and private law.

2. Justinian Code( Justinian was an Emperor (527-565) who enacted a comprehensive compilation of systematisation and consolidation of all existing law from every source. The Code is otherwise known as Corpus Juris. It comprised of

7  Joseph Dainow, The Civil Law and the Common La: Some points of Comparison, (1966-67) 15 American Journal of Comparative Law 419.

a)  Institutions- a systematic treatise issued as an elementary textbook.

b)  The digest – a compilation of edited fragments from roman juristic writings.

c) The Codex-Collection of Imperial enactments.

d)  The Novels- Collection of the imperial legislation enacted by Justinian himself.

THE FRENCH NAPOLEAN CIVIL CODE (1804)

GERMAN CIVIL CODE

The above mentioned codes, to name a few stand to the testimony that the civil law system has the codes as the sources of law

3. There was always a clear division of private law and public law.

4. Another distinctive feature that can be attributed to civil law system is that, judges administered justice according to the laws enacted by the parliament.

5. The Constitution is supreme.

6. Statutes were the primary source of law and judicial decisions were considered as secondary sources.

7. The Civil law system followed inquisitorial system.(rigorous investigation by the court itself.)

Thus, the Civil law system refers to the entire systems of law which applies to European Countries, Latin America, Africa, Indonesia, Japan etc. The Civil law countries include France, Germany, Italy, Switzerland, Austria and Latin American Countries, Turkey various Arab states, North Africa and Madagascar. Civil Law as an autonomous system of law originated and evolved in the continental Europe and the influence of colonization, legal science movements and various key codifications, particularly those of 19th century have played a part in the formation of this type of law.

Distinguishing features of civil law system

COMMON LAW SYSTEM

Another parent legal family which is considered as one of the most influential major legal systems in the world is the common law systems and nearly half of the world falls under the common law jurisdiction. The Common law as a legal system is associated with its origin and development in England where the social and economic and political history as well as the foundation of its law stem from the feudal system and its incidents. This is mainly because of the wide spread colonization by the British. The unique feature of common law system is English sources; institutions co-existed with the religious and local customs of people. The administration of and the government was transformed into an infrastructure – identified as English style of government and administration and English law was not imposed but voluntarily adopted.

The English tradition influenced throughout the world which include places such as Australia, US, Singapore, South East Asia, India Hong Kong Pakistan North America, New Zealand, large parts of Africa

KEY FEATURES OF COMMON LAW SYSTEM

The key events that shaped the common law tradition are

• The early centralisation of courts mainly brought about by Henry II, wherein the royal courts were constituted. The common law courts became the main source of law common to the whole country.
• The source of law is previous decision. The case based system of law is regulated by the hierarchal doctrine of precedent.
• The common law created prerogative writs like Certiorari, Mandamus, and Prohibition which enabled administrative decisions of state organs and officials to be challenged.
• The concept of equity, which supplemented common law is another distinctive feature of English common law. For example trust is the most important creation of equity. Similarly decree for specific performance, injunctions quasi contracts, clog on equity of redemption etc are all principles of equity. Equity law developed in England as a legal method to soften the harsh effects of judicial precedent or legislation.
• Excepting the commercial law and company law English law is not codified.
• Institutions such as trust, tort law estoppels and agency are unique to the English common law.

Thus we understand upon a comparison between the two systems of law that, under civil law, a legal rule is related to moral ideology which is a guiding principle related to the concept of justice and there is a categorical division of law into public and private law and the concept of equity is unknown to the civil law system while common law maintained the difference of law and equity. On the other hand under the common law a legal rule provides remedy to the given case. The common law does not maintain division between private and public law however it administered justice through legal and equitable principles.

In the civil law tradition, the reasoning process is deductive, proceeding from stated general principles or rules of law contained in the legal codes to a specific solution. In common-law countries judges apply inductive reasoning deriving general principles or rules of law from precedent. The trial process under the two legal systems is note worthy.

Key Features of a Common Law System

JUSTICE DELIVERY SYSTEM

The Justice delivery system stands as a best example which distinguishes the civil law and the common law system. The civil law system followed the inquisitorial system of trial while the common law countries adopted adversarial method of trial.

COMPARISON OF ADVERSARIAL SYSTEM AND INQUISITORIAL SYSTEM

TRIAL PROCESS

The trial process is different in the two systems. In the civil law system, the single event trial is unknown, and trials involve an extended process with a series of successive hearings and consultations for the presentations and consideration of evidence. There are also procedural differences relating to the role of the judge in the trial process. As has been stated that common law follows adversarial system of trial while civil law system followed inquisitorial system of trial.

EVIDENCE

In adversarial model, responsibility for gathering evidence rest with the parties, police and independent evaluation of the evidence done by a neutral judge. In the inquisitorial system, the investigation is done by the court itself. The criminal in serious cases is typically seen by an independent prosecutor or an examining magistrate.

PRE TRIAL PROCESS

Another feature is in adversarial system the trial is by the exclusive forum for seeking out and determining the truth by allowing the defence to test and counter the evidence while in inquisitorial model the pre trial processes are an indispensible part of the process for seeking the truth.

CONDUCT OF TRIAL

In adversarial model the decision making is in the hands of the parties where as in inquisitorial system it is limited and prosecution must take place in all cases. All parties determine and court’s role is confined to the evidence given in adversarial system while conduct of trial is in the hands of the court in the inquisitorial system. Similarly conduct of trial is in the hands of the court and victim has no recognised status in either pre trial or investigation nor in the trial itself, while in inquisitorial system victims have a more recognised role.

Thus the study of different legal systems revives the study of general jurisprudence from a global perspective which enables justice systems in every country to attempt to perfect their own legal system and helps in shaping foreign policies in different countries and aids in streamlining global business. The 21st century is an era where people are closer to each other and at the same time share many problems and are continuously striving against them. So to meet such challenges relating to legal systems comparative method of approach to be taken as it gives the perspective of continuous law reform and it acts as an aid to systematic unification and harmonisation of law.

Inquisitorial System

Adversarial System

SUMMARY

From the foregoing discussion it may be discerned that legal systems are differentiated by historical heritage, sources of law, division of law, court structures and fundamental attitudes to law and legal philosophy. Thus understanding different legal systems gives a broad over view of the legal systems functioning at global perspective and helps in contributing to the unification and harmonisation of law. Hence, comparison of the major legal systems of the world is an endeavour to function towards creating a world law.

LEARN MORE

• Peter De Cruz, Comparative Law In a Changing World, Routledge-Cavendish.
• Zweigert & Kotz, An Introduction to Comparative Law, Clarendon Press.
• Michael Freeman, Lloyd’s Jurisprudence, Sweet & Maxwell.
• Paton G.W., A Textbook of Jurisprudence, Clarendon Press. Werner Mensk, Comparative Law in the Global Context, USA CUP