Chapter 1: Legal Systems and Sources of Law
Legal Systems
“A legal system refers to a set of operating institutional structures (the general framework for applying the law), legal procedures (how law is procedurally administered), and rules (the substantive content of the law). No less important is how various elements of the legal system (conceptions of law, formal institutions, the legal profession, courts, and the citizenry) interact to give the law meaning, continuity, and change.” (p.4)
Civil Law
“Most Continental European countries have civil law systems.” (p.4)
Who was the Emperor Justinian and why was he important to the development of civil law?
What are the major differences between the variations of modern civil law systems observed in France and Germany?
“Until recently, civil law systems did not provide for judicial review – the power to declare legislative acts unconstitutional. The absence of judicial review is explained by the subordinate role courts play to legislatures. The nature of legal analysis in civil law systems also gives little discretion to courts in interpreting codes and legislative intent. In other words, modern civil codes are generally a systematic collection of general legal principles and laws enacted by the legislative bodies… For civil law judges, then, the civil code is both the starting and the ending point for legal analysis.” (p.5-7)
“The traditional civil law model has been changing, however, since the second half of the twentieth century. After World War II, new constitutional courts, along with the power of judicial review, were introduced in Europe… Hence, like their American counterparts, some European constitutional courts are now playing a more dynamic role in interpreting law and making social policy.” (p.7)
What are the major differences between inquisitional and adversarial law systems?
Common Law
“Whereas civil law systems are based on the primacy of the legislature and a code, the common law system is based on the role of the judges.” (p.8)
Why was the Norman Conquest in 1066 important to the development of the common law? What was the writ system? Who is the central figure in a common law system? What is the doctrine of stare decisis?
“Apart from England, contemporary common law legal systems include the United States, Canada, Australia, and Ireland.” (p.9)
Who was Sir William Blackstone? Why were his Commentaries on the Laws of England important to the development of the common law?
Ideological Legal Systems
“Although the collapse of the Soviet Union in 1989 has diminished its global significance, socialist law continues to influence the legal systems not only in China but also in Russia, North Korea, Vietnam, Laos, and some other countries. Socialist legal systems borrow heavily from the civil law system in the use of codes. However, the defining characteristic is political ideology and the instrumental use of law in service of the socialist state… At the heart of socialist ideology is the belief that elites in civil society capture the means of economic production from the working class, the proletariat, and thus deprives workers from enjoying the value of their labor. For socialists, Western law supporting capitalist economic arrangements only promotes individuals’ alienation and takes away personal liberty.” (p.11)
Who were Karl Marx and Frederick Engels and why were their philosophies important to the development if socialist legal systems?
Religious Legal Systems
“Throughout history, religion has influenced law across the globe… Muslim or Islamic law as expressed in the Qur’an Islam’s holy book, is the touchstone for “mixed” legal systems found in Pakistan, parts of Malaysia and Indonesia, northern and eastern Africa, and much of the Middle East, including Syria, Iran, and Saudi Arabia. Indeed, a large proportion of the world’s population adheres to the tenets of Islamic religion… Still, many of the world’s major legal systems are impacted by Islamic law. A personal commitment to the Islamic faith is holistic, involving all aspects of life. ‘Islam,’ it has been said, ‘is a religion, a legal system, and a lifestyle all in one.’” (p.12)
“Although it is Islam’s most important sacred text, the Qur’an is supplemented by the Sunnah, which reports the teachings of the prophet Muhammad. Together, the Qur’an and the Sunnah constitute the center of Islamic law, the Shariah. As divine law, the Shariah cannot be changed by man. It can be interpreted by scholars but, by a command from Allah, anything less than total compliance is a violation of the whole Islamic community and subject to severe sanctions not only in this world but also in the next. The Shariah identifies five pillars of personal responsibility (profession of faith, daily prayer, almsgiving, fasting, and pilgrimage to Mecca) as well as guidelines for social relations involving family, criminal, contract, and international law.” (p.12)
What is the concept of sulh?
Customary and “Mixed” Legal Systems
“Although few countries base their legal systems on local customs, customary law – rules based on social customs and enforced by community sanction – influence a considerable number of mixed systems.” (p.13)
Describe some examples of contemporary mixed legal systems.
The Nature and Sources of Law
“’Laws,’ Roscoe Pound once observed, ‘are general rules recognized or enforced in the administration of justice.’ Pound’s remark reflects the idea that law is usually thought of as a rule enacted by government and enforced through the imposition of a penalty. Those subject to law’s command obey it because it is just to do so, and it is perceived as a legitimate source of governmental authority. The perception of law’s legitimacy is also intertwined with law’s social purpose. Hence, the law’s purpose is critical to appreciating how law regulates human activity, while simultaneously maintaining social order and securing justice.” (p.15)
“Accordingly, U.S. courts apply the law to ensure that justice is done in society. In conventional terms, ‘justice’ is understood in two ways: corrective and distributive. Corrective justice corrects a wrong that has harmed an innocent third party. If someone has stolen a car or vandalized public property, corrective justice is delivered by punishing the offender. Distributive justice, on the other hand, rectifies an inequality existing between parties because it is just to do so.” (p.15)
Public Law
“Law affecting the government encompasses public law – that is, the legal relationships among governments and between governments and individuals. Statutory law, or legislation enacted by popular assemblies, is the major source of public law… The interplay between the legislative, executive, and judicial branches in ascertaining the meaning of statutes raises important questions of separation of powers and, sometimes, of constitutional law. The distinct but interrelated sub-categories of public law – constitutional law, administrative law, and criminal law – are the other sources of American law.” (p.16)
Constitutional Law
“In the United States, constitutional rights, duties, and obligations are given final effect by the Supreme Court. Each ruling from the Court is binding as the ‘supreme Law of the land’ under Article VI of the U.S. Constitution. Notably, though Article III vests judicial power in ‘one Supreme Court,’ the Constitution is silent on whether the Court has the authority to determine the constitutionality of legislation or official executive action. The Court asserted that power in the landmark case of Marbury v. Madison (1803). (p.16)
What was the basis of the Court’s decision to assume the power of judicial review in Marbury v. Madison?
Administrative Law
“Although the U.S. Constitution omits any reference to a government bureaucracy, the realities of governing made it necessary for administrative agencies to be created. On the federal and state level, the legislature creates the law, but administering it requires the creation of agencies to implement legislative policy.” (p.18)
“Under the federal Administrative Procedure Act, and identical state laws, administrative agencies are key sources of primary law because they are empowered to promulgate administrative regulations. Federal regulations are published in The Federal Register and are accessible through the Code of Federal Regulations. Moreover, agencies have quasi-judicial characteristics because they can resolve disputes with the public or other agencies with formal and informal agency hearings.” (p.19)
Criminal Law
“Criminal law deals with the use of governmental power to enforce violations of federal and state penal codes. The legal culpability for committing a crime is defined under statutory law that covers different kinds of illegal behavior, ranging from traffic offenses to capital murder. Generally, crimes are categorized in accordance with the harm they cause. Felonies, such as arson, rape, aggravated assault, and grand larceny are serious offenses, punishable by lengthy prison sentences. Misdemeanors involves less property or bodily harm and include minor offenses such as disorderly conduct, possession of marijuana (in small amounts), loitering, and public intoxication. Misdemeanors are punished less severely, usually with shorter incarceration (less than one year) or restitution.” (p.19-20)
Private Law
“Private law regulates the private affairs of citizens. It is the primary mechanism by which individuals resolve their disputes. It defines personal obligations to other citizens, groups, or business entities. At the same time, it also gives citizens vested interests in remaining safe from physical or material harm. The law regulating corporate behavior is private law, as is the law establishing the rules governing civil marriage, divorce, and child custody. The personal assets and liabilities of a person’s estate are distributed in accordance with the law of probate, another subunit of private law.” (p.20-21)
Contract Law
“The modern law of contracts is an integral part of the common law tradition. In the United States, as it became easier to sell goods in a regional market economy, contract law underwent a major transformation in the late 18th century. Under prior doctrine, contracting parties could avoid performing their agreements if it could be shown that the terms were patently unfair. The emerging doctrine, often referred to as the will theory of contracts, instead recognized that the law should honor agreements that are based on the intent of the parties. The inherent fairness of the exchange became less important than the fact that the contracting parties made an agreement. Accordingly, the convergence of wills became a basis for modern contract law. Because the intent to make a binding contract determined its enforceability, agreements that were reached in principle but not yet performed – so-called executory contracts – became enforceable as well. In short, under the will theory, contract law was revolutionized: In making contracts, parties could rely on the certainty that their agreements would be legally binding documents.” (p.22)
Tort Law
“The origins of tort law, which affords remedies for injury, can be traced back to the Civil War. The subject matter of torts, private civil wrongs, was not recognized as a separate source or category of law until 1850.” (p.23)
What are the differences between Intentional torts, Negligent torts, and Strict liability torts?
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