Chapter Four
Legal systems: Background
Dr Khalil Hussein
Professor at Lebanese University
Director of studies at Lebanese Parliament
In general, legal systems around the world can be split between civil law jurisdictions, on the one hand, and systems using common law and equity, on the other. The term civil law, referring to a legal system, should not be confused with civil law as a group of legal subjects, as distinguished from criminal law or public law. A third type of legal system - still accepted by some countries in part, or even in whole - is religious law, based on scriptures and interpretations thereof. The specific system that a country follows is often determined by its history, its connection with countries abroad, and its adherence to international standards. The sources that jurisdictions recognize as authoritatively binding are the defining features of legal systems. Yet classification of different systems is a matter of form rather than substance, since similar rules often prevail.
Civil law is the legal system used in most countries around the world today. In civil law the sources recognized as authoritative are, primarily, legislation - especially codifications in constitutions or statutes passed by government - and, secondarily, custom. Codifications date back millennia, with one early example being the ancient Babylonian Codex Hammurabi, but modern civil law systems essentially derive from the legal practice of the Roman Empire, whose texts were rediscovered in medieval Europe. Roman law in the days of the Roman Republic and Empire was heavily procedural, and there was no professional legal class.[1] Instead a lay person, index, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognized.[2] Each case was to be decided afresh from the laws of the state, which mirrors the (theoretical) unimportance of judges' decisions for future cases in civil law systems today. During the 6th century AD in the Eastern Roman Empire, the Emperor Justinian codified and consolidated the laws that had existed in Rome, so that what remained was one-twentieth of the mass of legal texts from before.[3] This became known as the Corpus Juris Civilis. As one legal historian wrote, "Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before."[4] Western Europe, meanwhile, slowly slipped into the Dark Ages, and it was not until the 11th century that scholars in the University of Bologna rediscovered the texts and used them to interpret their own laws.[5] Civil law codifications based closely on Roman law continued to spread throughout Europe until the Enlightenment; then, in the 19th century, both France, with the Code Civil, and Germany, with the Bürgerliches Gesetzbuch, modernized their legal codes. Both these codes influenced heavily not only the law systems of the countries in continental Europe (e.g. Greece), but also the Japanese and Korean legal traditions.[6] Today countries that have civil law systems range from Russia and China to most of Central and Latin America.[7]
Common law and equity are systems of law whose special distinction is the doctrine of precedent, or stare decisis (Latin for "to stand by decisions"). Alongside this "judge-made law", common law systems always have governments who pass new laws and statutes. But these are not put into a codified form. Common law comes from England and was inherited by almost every country that once belonged to the British Empire, with the exceptions of Malta, Scotland, the U.S. state of Louisiana and the Canadian province of Quebec. Common law had its beginnings in the Middle Ages, when the English monarchy had been weakened by the enormous cost of fighting for control over large parts of France. King John had been forced by his barons to sign a document limiting his authority to pass laws. This "great charter" or Magna Carta of 1215 also required that the King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country.[8] A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralized. In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five.[9] This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law.[10] As a result, as time went on, increasing numbers of citizens petitioned the King to override the common law, and on the King's behalf the Lord Chancellor gave judgement to do what was equitable in a case. From the time of Sir Thomas More, the first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery. At first, equity was often criticized as erratic, that it "varies like the Chancellor's foot". But over time it developed solid principles, especially under Lord Eldon.[11] In the 19th century the two systems were fused into one another. In developing the common law and equity, academic authors have always played an important part. William Blackstone, from around 1760, was the first scholar to describe and teach it.[12] But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.[13]
Religious law refers to the notion that the word of God is law. Examples include the Jewish Halakha and Islamic Sharia, both of which mean the "path to follow". Christian Canon law also survives in some Church communities. The implication of religion for law is inalterability, because the word of God cannot be amended or legislated against by judges or governments. However, religious texts usually do not provide for a thorough and detailed legal system. For instance, the Quran has some law but not much, and it acts merely as a source of further law through interpretation.[14] This is mainly contained in a body of jurisprudence known as the fiqh. The first five books of the Old Testament are known as the Torah and include Genesis, Exodus, Leviticus, Numbers and Deuteronomy. The Halakha is the interpretation of teachings and is followed by orthodox and conservative Jews in both ecclesiastical and civil relations. Nevertheless, Israel is not governed by Halakha, but under Israeli law, the litigants may decide, because of personal belief, to have a dispute heard by a Rabbinic court and be bound by its rulings. Canon law is only in use by members of the clergy in the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion. Until the 18th century Sharia law reigned supreme, nominally at least, throughout the Muslim world; but since the mid-1940s efforts have been made, in country after country, to bring the law more into line with modern conditions and conceptions.[15] Nowadays, Sharia is merely an optional supplement to the civil or common law of most countries, though Saudi Arabia and Iran's whole legal systems source their law in Sharia. During the last few decades, one of the fundamental features of the movement of Islamic resurgence has been the call to restore the Sharia, which has generated a vast amount of literature and affected world politics.[16]
[1] Gordley, James R.; von Mehren, Arthur Taylor (2006). An Introduction to the Comparative Study of Private Law,.p, 18.
[2] Gordley-von Mehren, Comparative Study of Private Law, 1999,p 21.
[3] Stein, Peter ,Roman Law in European History. Cambridge University Press,p 32
[4] Stein, Roman Law in European History,p 35.
[5] Stein, Roman Law in European History,p 43.
[6] Hatzis, The Short-Lived Influence of the Napoleonic Civil Code in Greece, European Journal of Law and Economics 14, 253–263.
[7] The World Factbook, Legal system..
[8] Magna Carta, Fordham University.
[9] Gordley-von Mehren, Comparative Study of Private Law,p 4.
[10] Gordley-von Mehren, Comparative Study of Private Law,p 3.
[11] Gee v. Pritchard (1818) 2 Swans. pp402, 414.
[12] Blackstone, Commentaries on the Laws of England, Book 1 – Chapter 1..
[13] Gordley-von Mehren, Comparative Study of Private Law,p 17.
[14] Glenn, H. Patrick ,Legal Traditions of the World. Oxford University Press,2002,p 159.
[15] Anderson, J.N.D,"Law Reform in the Middle East". International Affairs (Royal Institute of International Affairs,1956.,pp 274 –275..
[16] Hallaq, Wael Bahjat , "Introduction", The Origins and Evolution of Islamic Law. Cambridge University Press,2005.
Legal systems: Background
Dr Khalil Hussein
Professor at Lebanese University
Director of studies at Lebanese Parliament
In general, legal systems around the world can be split between civil law jurisdictions, on the one hand, and systems using common law and equity, on the other. The term civil law, referring to a legal system, should not be confused with civil law as a group of legal subjects, as distinguished from criminal law or public law. A third type of legal system - still accepted by some countries in part, or even in whole - is religious law, based on scriptures and interpretations thereof. The specific system that a country follows is often determined by its history, its connection with countries abroad, and its adherence to international standards. The sources that jurisdictions recognize as authoritatively binding are the defining features of legal systems. Yet classification of different systems is a matter of form rather than substance, since similar rules often prevail.
Civil law is the legal system used in most countries around the world today. In civil law the sources recognized as authoritative are, primarily, legislation - especially codifications in constitutions or statutes passed by government - and, secondarily, custom. Codifications date back millennia, with one early example being the ancient Babylonian Codex Hammurabi, but modern civil law systems essentially derive from the legal practice of the Roman Empire, whose texts were rediscovered in medieval Europe. Roman law in the days of the Roman Republic and Empire was heavily procedural, and there was no professional legal class.[1] Instead a lay person, index, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognized.[2] Each case was to be decided afresh from the laws of the state, which mirrors the (theoretical) unimportance of judges' decisions for future cases in civil law systems today. During the 6th century AD in the Eastern Roman Empire, the Emperor Justinian codified and consolidated the laws that had existed in Rome, so that what remained was one-twentieth of the mass of legal texts from before.[3] This became known as the Corpus Juris Civilis. As one legal historian wrote, "Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before."[4] Western Europe, meanwhile, slowly slipped into the Dark Ages, and it was not until the 11th century that scholars in the University of Bologna rediscovered the texts and used them to interpret their own laws.[5] Civil law codifications based closely on Roman law continued to spread throughout Europe until the Enlightenment; then, in the 19th century, both France, with the Code Civil, and Germany, with the Bürgerliches Gesetzbuch, modernized their legal codes. Both these codes influenced heavily not only the law systems of the countries in continental Europe (e.g. Greece), but also the Japanese and Korean legal traditions.[6] Today countries that have civil law systems range from Russia and China to most of Central and Latin America.[7]
Common law and equity are systems of law whose special distinction is the doctrine of precedent, or stare decisis (Latin for "to stand by decisions"). Alongside this "judge-made law", common law systems always have governments who pass new laws and statutes. But these are not put into a codified form. Common law comes from England and was inherited by almost every country that once belonged to the British Empire, with the exceptions of Malta, Scotland, the U.S. state of Louisiana and the Canadian province of Quebec. Common law had its beginnings in the Middle Ages, when the English monarchy had been weakened by the enormous cost of fighting for control over large parts of France. King John had been forced by his barons to sign a document limiting his authority to pass laws. This "great charter" or Magna Carta of 1215 also required that the King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country.[8] A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralized. In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five.[9] This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law.[10] As a result, as time went on, increasing numbers of citizens petitioned the King to override the common law, and on the King's behalf the Lord Chancellor gave judgement to do what was equitable in a case. From the time of Sir Thomas More, the first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery. At first, equity was often criticized as erratic, that it "varies like the Chancellor's foot". But over time it developed solid principles, especially under Lord Eldon.[11] In the 19th century the two systems were fused into one another. In developing the common law and equity, academic authors have always played an important part. William Blackstone, from around 1760, was the first scholar to describe and teach it.[12] But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.[13]
Religious law refers to the notion that the word of God is law. Examples include the Jewish Halakha and Islamic Sharia, both of which mean the "path to follow". Christian Canon law also survives in some Church communities. The implication of religion for law is inalterability, because the word of God cannot be amended or legislated against by judges or governments. However, religious texts usually do not provide for a thorough and detailed legal system. For instance, the Quran has some law but not much, and it acts merely as a source of further law through interpretation.[14] This is mainly contained in a body of jurisprudence known as the fiqh. The first five books of the Old Testament are known as the Torah and include Genesis, Exodus, Leviticus, Numbers and Deuteronomy. The Halakha is the interpretation of teachings and is followed by orthodox and conservative Jews in both ecclesiastical and civil relations. Nevertheless, Israel is not governed by Halakha, but under Israeli law, the litigants may decide, because of personal belief, to have a dispute heard by a Rabbinic court and be bound by its rulings. Canon law is only in use by members of the clergy in the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion. Until the 18th century Sharia law reigned supreme, nominally at least, throughout the Muslim world; but since the mid-1940s efforts have been made, in country after country, to bring the law more into line with modern conditions and conceptions.[15] Nowadays, Sharia is merely an optional supplement to the civil or common law of most countries, though Saudi Arabia and Iran's whole legal systems source their law in Sharia. During the last few decades, one of the fundamental features of the movement of Islamic resurgence has been the call to restore the Sharia, which has generated a vast amount of literature and affected world politics.[16]
[1] Gordley, James R.; von Mehren, Arthur Taylor (2006). An Introduction to the Comparative Study of Private Law,.p, 18.
[2] Gordley-von Mehren, Comparative Study of Private Law, 1999,p 21.
[3] Stein, Peter ,Roman Law in European History. Cambridge University Press,p 32
[4] Stein, Roman Law in European History,p 35.
[5] Stein, Roman Law in European History,p 43.
[6] Hatzis, The Short-Lived Influence of the Napoleonic Civil Code in Greece, European Journal of Law and Economics 14, 253–263.
[7] The World Factbook, Legal system..
[8] Magna Carta, Fordham University.
[9] Gordley-von Mehren, Comparative Study of Private Law,p 4.
[10] Gordley-von Mehren, Comparative Study of Private Law,p 3.
[11] Gee v. Pritchard (1818) 2 Swans. pp402, 414.
[12] Blackstone, Commentaries on the Laws of England, Book 1 – Chapter 1..
[13] Gordley-von Mehren, Comparative Study of Private Law,p 17.
[14] Glenn, H. Patrick ,Legal Traditions of the World. Oxford University Press,2002,p 159.
[15] Anderson, J.N.D,"Law Reform in the Middle East". International Affairs (Royal Institute of International Affairs,1956.,pp 274 –275..
[16] Hallaq, Wael Bahjat , "Introduction", The Origins and Evolution of Islamic Law. Cambridge University Press,2005.
