English Legal System And Its Context: Legal Systems Around The World – Civil Law (Codified), Common Law, Customary Law, Religious Law, Mixed Legal Systems (Copy)

Legal Systems Around The World

• Civil Law (Codified Systems)
  • Civil law systems are based on comprehensive legal codes that set out the core principles of law in written statutes, rather than relying heavily on judicial decisions.
  • Originates from Roman Law, developed into the Napoleonic Code (1804) and German Civil Code (Bürgerliches Gesetzbuch 1900).
  • Countries such as France, Germany, Italy, Spain, Japan, and many Latin American nations operate under civil law systems.
  • Judges in civil law countries have a limited role in law-making. They apply the code rather than developing the law through precedent.
  • Advantages: clarity, predictability, structured framework, certainty in legislation.
  • Disadvantages: less flexibility, slow to adapt to new social changes unless legislation is passed.
  • Example: French Civil Code (Code Civil 1804) still serves as the foundation of private law in France.
• Common Law Systems
  • Common law systems rely on judicial decisions and precedents (stare decisis) as a primary source of law.
  • Originated in England after 1066 (Norman Conquest) when royal judges travelled the country to settle disputes, gradually creating a body of common customs.
  • The doctrine of judicial precedent means that decisions of higher courts are binding on lower courts.
  • Countries following this system: England and Wales, United States (except Louisiana), Canada (except Quebec), Australia, India, Pakistan.
  • Flexibility: the courts can adapt the law through case development.
  • Key Cases:
    • Donoghue v Stevenson (1932) AC 562 – established the modern law of negligence (“neighbour principle”).
    • Carlill v Carbolic Smoke Ball Co (1893) 1 QB 256 – developed contract law principles on offers and acceptance.
  • Statutes also exist, but they are interpreted and applied in the light of precedent.
• Customary Law
  • Derived from long-established traditions, practices and customs of communities.
  • Recognised in various jurisdictions, especially in African countries, South Asia, and indigenous legal systems.
  • Often unwritten but acknowledged by courts as binding when sufficiently certain and continuous.
  • Example: In Nigeria and Ghana, customary law governs marriage, inheritance, and land tenure in rural areas.
  • In England, some elements of customary law historically existed, but today it has a limited role (e.g., local borough customs).
• Religious Law
  • Based on religious texts and principles, governing both public and private life.
  • Islamic Law (Sharia): derived from the Qur’an, Hadith, Ijma (consensus), and Qiyas (analogy).
    • Governs family law, contracts, property rights, and crimes.
    • Applied fully in countries like Saudi Arabia and Iran, and partially in countries like Pakistan, Egypt, and Nigeria (in certain states).
    • Example: Hudood Ordinances in Pakistan (1979) implemented Sharia punishments for theft and adultery.
  • Jewish Law (Halakha): followed in religious courts in Israel for personal matters like marriage and divorce.
  • Canon Law: governs the Catholic Church and applies within its religious jurisdiction.
• Mixed Legal Systems
  • A combination of two or more legal traditions (civil, common, customary, religious).
  • Examples:
    • South Africa: blend of Roman-Dutch civil law and English common law.
    • Scotland: mixed system with civil law structure but influenced by English common law.
    • India and Pakistan: common law basis (due to British colonial influence) but personal law (marriage, divorce, inheritance) governed by religious law.
    • Quebec, Canada: civil law in private law matters, common law in public law.

Adversarial And Inquisitorial Systems

• Adversarial System (Common Law Tradition)
  • Found in England, Wales, USA, and Commonwealth nations.
  • Two opposing parties present their cases before a neutral judge (and sometimes jury).
  • Role of judge: passive, acts as referee, ensures fairness but does not investigate.
  • Advantages: promotes fairness, parties control their case, fits with idea of equality of arms.
  • Disadvantages: costly, lengthy, outcome depends on skill/resources of lawyers, may disadvantage weaker party.
  • Example: English criminal trials – R v Woolmington (1935) established the principle that the prosecution must prove guilt beyond reasonable doubt.
• Inquisitorial System (Civil Law Tradition)
  • Found in France, Germany, Italy, Spain.
  • Judge plays an active role in investigating the facts, questioning witnesses, and gathering evidence.
  • Advantages: less costly, speedier, emphasis on truth-finding rather than competition.
  • Disadvantages: less emphasis on procedural fairness, risk of judicial bias.
  • Example: In France, the juge d’instruction (investigating judge) leads pre-trial investigations.

The Rule Of Law

• The principle that everyone, including government, is subject to law.
• Key Thinkers:
  • A.V. Dicey (1885): three pillars of rule of law:
    1. No punishment except in accordance with the law.
    2. Equality before the law.
    3. The constitution is the result of the ordinary law of the land.
  • Lord Bingham (2010): expanded to include human rights, accessibility of law, fair trials, access to justice.
• Cases/Examples:
  • Entick v Carrington (1765) – government officials cannot act without legal authority.
  • Human Rights Act 1998 enforces rule of law by protecting fundamental rights.

The Difference Between Civil And Criminal Law

• Civil Law: regulates relationships between individuals and organisations.
  • Examples: contract disputes, tort claims, family law.
  • Standard of proof: balance of probabilities.
  • Remedies: compensation, injunctions, declarations.
  • Example: Donoghue v Stevenson (1932) – tort law.
• Criminal Law: regulates offences against the state and society.
  • Prosecuted by the state (CPS in England).
  • Standard of proof: beyond reasonable doubt.
  • Remedies: punishment (custodial, fines, community service).
  • Example: R v Cunningham (1957) – defined recklessness in criminal law.

Relationship Between Law And Morality

• Morality: values, beliefs and norms held by society.
• Law: rules enforced by courts, backed by sanctions.
• Sometimes overlap (e.g., laws against murder, theft).
• Sometimes diverge (e.g., adultery is immoral but not illegal in England).
• Hart–Devlin Debate (1960s):
  • Lord Devlin: law should enforce moral values for society’s cohesion.
  • Professor H.L.A. Hart: law should not enforce morality unless harm principle (Mill) applies.
• Example: Wolfenden Report (1957) recommended decriminalisation of homosexuality, showing shift in law following changing morality.

Law And Justice

• Justice: fairness in outcome and procedure.
• Distributive Justice (Aristotle): fair distribution of resources.
• Procedural Justice: fairness in processes.
• Cases:
  • R v Brown (1993) – consensual sadomasochistic acts criminalised; question of justice and morality.
  • A v Secretary of State for the Home Department (2004) – indefinite detention of foreign terror suspects was unlawful under Human Rights Act.

The Role Of Law In Society

• Provides order and stability.
• Protects individual rights and freedoms.
• Promotes social change and development (e.g., Race Relations Act 1965, Equality Act 2010).
• Maintains balance between individual liberty and state power.
• Law evolves with society’s needs – e.g., Computer Misuse Act 1990 introduced to address cybercrime.

Importance Of Fault In Civil And Criminal Law

• Fault principle: liability usually depends on blameworthiness (intention, negligence, recklessness).
• Civil Law Examples:
  • Negligence requires proof of fault (duty, breach, causation) – Donoghue v Stevenson (1932).
  • Strict liability torts exist, but generally limited.
• Criminal Law Examples:
  • Most crimes require mens rea (fault element).
  • Sweet v Parsley (1970) – strict liability offences are exceptions and must be clearly intended by Parliament.
• Importance: ensures fairness, proportionality in sentencing, and upholds rule of law.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course