Essential Elements of the Legal System PDF

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Rita Rodríguez

ESSENTIAL ELEMENTS OF THE LEGAL SYSTEM What is a legal rule? A legal rule is a behavioral rule which contains a general binding order for all members of a community because it has been issued by bodies especially authorized for doing so. Legal rules have special characteristics that allow differentiating them from other categories of social rules: -

They regulate relations between subjects

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They refer to general cases

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They are mandatory

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In case of non-compliance, forced enforcement or sanctions may be imposed, resorting, if necessary, to the legitimate use of force by State bodies

What is the law? Law may be defined as a body of rules, created by the state, binding within its jurisdiction and enforced with the authority of the state through the use of sanctions. Law is a body of rules. It tells us what we can and cannot do. Functions of the law 1) Regulates conduct 2) Avoids or settles disputes 3) Set out rights and obligations (for example the Spanish Constitution) 4) Provides remedies 5) Maintains order and provides protection 6) Sets up the structure of government 7) Direct how to make laws Some basic distinctions First distinction: -

Natural law (derecho natural): Unwritten body of universal moral principles that underlie the ethical and legal norms by which human conduct is sometimes evaluated and governed. It’s what universally society thinks it’s right or wrong.

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Positive law (derecho positivo): Written laws consisting of codes, acts and regulations enacted or imposed by an official entity vested with authority to prescribe the rules and regulations for a particular community.

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Second distinction: -

International law: Governs independent nations in their relationships with one another.

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Domestic law: Governs activity within a nation’s border.

Third distinction -

Procedural law: prescribes the methods of enforcing the rights and obligations of substantive law. (requirements for a lawful arrest, trial procedures…)

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Substantive law: defines or creates rights, duties, and obligations of citizens and government. (right to enter into contracts, the rules of the road…) a)

Public law: governs the relationships between state and individuals. It regulates: -

Organization and functioning of the State

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Relationships among the State institutions

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Relationships among the State and individuals, as long as the State acts embodied with sovereignty

b) Private law: governs the relationships between individuals. It regulates: -

Relationships among individuals

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Relationships among individuals and State institutions when they are not embodied with sovereignty

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Relationships among State institutions when they are not embodied with sovereignty

PUBLIC LAW Constitutional

law:

Regulates

the

State

PRIVATE LAW Tort law / Law of damages (civil law): Deals with

institutions, the procedure through which the

the wrongful actions of an individual or entity,

power of the State is manifested, as well as

which cause injury to another individual’s or

recognition and enforcement of subjective rights

entity’s person, property, or reputation, and

of the citizens. It is called “” because the legal

which entitle the injured party to compensation.

text

that

sustains

this

discipline

is

the

Constitution. Criminal law: Establishes the offences and

Contract law (civil law): Body of rules that relates

penalties for those who commit them. Tax law: Governs how taxes are imposed by the

to making and enforcing agreements. Inheritance law (civil law): Deals with the

government onto citizens and non-citizens

distribution of a person’s property after his or her

Administrative

law:

Governs

the

public

death. Property law (civil law): Governs the various

administrations (national, regional and local), forms of ownership and tenancy in real property their internal organization and their relationships

and in personal property. !! Not the same as

with each other and with citizens.

intellectual property law, que serien els drets

Public International law: Refers to those laws,

d’autor. Family law (civil law): Deals with matters of 2

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rules, and principles that deal with the conduct

significant

impact

of

(divorce, custody, adoption…).

states and international organizations among themselves, as well as the relationships between

Commercial

law:

on

family

Governs

relationships

business

and

states and international organizations with commercial transactions. natural and legal persons (treaties, conventions Private International law: Body of rules used to or covenants).

resolve disputes between private individuals who cross international boundaries.

General state power division

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

LEGAL TRADITIONS

National legal systems Each country has its own legal system. The structure and characteristics of each legal system are highly variable. Some legal systems are organized on the basis of a written constitution (for example Spain), some have constitutional systems not resulting from a single written constitution text (for example UK), and some do not have an explicit constitutional framework. Classification of legal systems (I) It is possible to classify national legal systems into several groups, based on the existence of common characteristics, legal concepts and traditions. Traditional classification: a) Civil law system b) Common law system c) Mixed legal system d) Customary or religious law Classification of legal systems (II) Elements that are taken into account to classify legal systems: •Sources of law: what constitutes a law in each legal system (statutes, customs, judicial decisions, generally accepted legal principles, opinions of jurists…) Civil law systems place more emphasis on statutory law / Common law systems place more emphasis on case law •Legal concepts and terminology used by each system Equity or consideration (common law systems) / Judicial act or business association (civil law systems) •Historical development of each national law Civil law systems are based on Roman law / Common law systems are based on English common law

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2. CIVIL LAW SYSTEMS VS. COMMON LAW SYSTEMS Features Sources of Law Role of judges Selection of judges

Civil Law Codification/Statutes Application Career judges

Juries

Not frequent (only in serious Frequent (at trial stage) criminal matters) Inquisitorial process Adversarial process Formalism. Deduction Pragmatism. Induction

Characteristics of processes Main approach to adjudication Role of Scholars Formation. Learning by

Doctrine. Commentaries Reading the codes

Common Law Case-law. Precedent (stare decisis) Creation Appointed or elected judges among lawyers

Casebooks –extracting general norms from similar cases Reading the cases

2.1 Civil law A) HISTORY -

It is the predominant legal system in Western Europe

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Origins: Codification process occurred across Europe at the turn of the 18th century CODE: an authoritative, comprehensive and systematic collection of general clauses and legal principles, divided into Books or Parts dealing in a logical fashion with the law relating thereto. Traditionally codes were the primary sources of the law Currently constitutions are

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Inherits the Romano-Germanic traditions

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Based on Roman law -

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Also influenced by:



Canon Law

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Germanic Law (e.g., Visigothic Law: Liber Iudicorum)

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Customary practices and local regulations

Historical Development Codification processes. Civil Codes: 

Austria: Code of Joseph II 1786 (Complete Civil Code 1881)



Prussia: Complete Territorial Code 1794. Modernization of German Civil Code (Bürgerliches Gesetzbuch: BGB, 1900)

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France: Civil Code (Napoleonic Code) 1804

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Spain: Late codification. Código Civil 1889

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B) FAMILIES in civil law: Napoleonic Germanistic

Sacndinavia n Chinese

France, Belgium, Quebec, Spain, Italy, the Netherlands, Louisiana (mixed), Argentina, Chile Germany, Austria, Switzerland, Czech Republic, Greece, Brazil, Portugal, Turkey, Japan, South Korea, Taiwan, Macao (by the influence of Portuguese law but also with influences of Chinese law and some narrow aspects of Common Law) Denmark, Finland, Iceland and Sweden China (except Macao and Hong Kong [Common Law]), but take into account socialist law

C) CHARACTERISTICS: -

Mostly written. Enacted law, custom and general principles are the primary sources of the law and they are BINDING. Case law and the writings of the legal scholars are NOT BINDING but they may have weight when primary sources are absent, unclear or incomplete.

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Codified. Codes create the civil law rather than revealing existent law

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Made by Parliament. Laws replace, rather than supplement, previous law

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Precedent is not necessarily binding

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Inquisitorial system rather than adversarial

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Little use of juries (generally only for very serious crimes)

2.2 Common law A) HISTORY -

Originated in England in 1066. 1550-1160: King Henry II of England elaborates on a system of actions (writs) and a system of courts of law to protect these actions (secular tribunals), as opposed to courts of equity (Court of Chancery)

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‘Common Law’ as the ’common’ legal solution that emerged from the different legal systems that preceded it

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Spread throughout the world via colonization and war

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The jurisdiction of the common courts limited by the writ system Writ (a form of action): ‘a command of the King directed to the relevant person (official, judge), containing a brief indication of a matter under dispute and

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instructing the addressee to call the defendant into his court and to resolve the dispute in the presence of the parties (Zweigert and Koelz, 1998) -

A plaintiff unable to obtain a proper writ was left with no remedy. To counter this problem and provide relief other than money damages, in the 15th century a formal Court of Chancery was created with jurisdiction over pleas in equity

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Yearbooks and Reports: collections of common law court cases and judicial opinions recorded and organized by year: Yearbooks  earliest editions compiled in England from the mid-thirteenth century until 1535 In 1535, they were superseded by officially printed and bound editions called  Reports -

William Blackstone (1723-1780) Commentaries on the Laws of England: Systematic approach to the study of common law

B) CHARACTERISTICS: -

Great importance is given to the decisions of judges to be followed in later cases (precedents)

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Precedents ‘stare decisis’ Judges are obliged to respect the precedent established by prior decisions Creation of “Case Law”: emergence and slow evolution

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Precedents have been characterized as being precise and flexible

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A decision based on particular facts gives some assurance that in a subsequent identical fact situation a similar conclusion will be reached

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Common law lawyers have become exceptionally skilful at distinguishing fact situations (in order to acquire different decision)

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The statute would not be able to include all these factual variations and possible solutions to them

PRECEDENT: Principle of stare decisis Two components: 1) Binding precedent: courts have to follow earlier decisions by the same court or made by a superior court 2) Persuasive precedent: courts should not overturn its own precedent unless there are strong reasons to do so. Overturning may be suggested by precedents from lateral and inferior courts Binding

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Persuasive The Binding precedent has two legal effects: I) Horizontal stare decisis: •Courts have to follow the decisions made by the same panel in the court, but not always follow decisions made by other panels of the same court •In cases of divergences between different panels in the same court, all judges form a new panel and rehear the case in order to establish a unique and binding solution (en banc decision) II) Vertical stare decisis: •Courts have to follow the decisions made by a superior court •In federal systems, in which there are state courts and federal courts (e.g., US), state courts may be bound by decisions made by federal courts in federal law matters and otherwise

B) CHARACTERISTICS (common law): •Most of the Commonwealth countries belong to the common law family: England and Wales (in Scotland, most English statutes are applicable, but Scottish private law is based primarily on Roman law and represents a mix of common law and civil law), United States (except Louisiana), Australia, New Zealand, Canada (except Quebec), India, South Africa (mixed legal system, accepted civil law) •Uncodified. Mostly unwritten  Judge-made law. Most common law systems do not have codes. Based on precedents. Additional sources of law: legislation, custom and conventions •Adversarial system •Relevant role for juries

C) EXAMPLES OF PRECEDENTS IN THE US Contracts law Fletcher vs. Peck (1810)

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In 1795, the Georgia legislature granted 35 million acres of land to private speculators at a very low price. When it was discovered that most of the legislators voting for the grant had been bribed, the legislature voided the grant the following year. Several years later, John Peck purchased some of the land in question, and subsequently sold it to Robert Fletcher. Fletcher subsequently sued Peck for breach of contract, alleging that the voiding of the initial grant had invalidated Peck's title to the land. The Supreme Court ruled that Georgia’s voiding of the 1795 grant was invalid because it violated a clause of the U.S. Constitution forbidding states to pass laws interfering with contracts. The decision in Fletcher v. Peck expanded the parameters of judicial review, as it marked the first time the Supreme Court struck down a state law as unconstitutional Dartmouth College vs. Woodward (1819) Expanded the principle of the Fletcher decision to include contracts between corporations and states. Previously it had been believed that states could disregard contracts held with private enterprises. As more business corporations were established around the country, this ruling became very important Right to privacy Roe v. Wade (1973) Norma McCorvey, a citizen of Texas, was pregnant and wanted to have an abortion. Texas state laws (and most other states) made abortion illegal in that state. Suing under the name Jane Roe she claimed that the state of Texas violated her right to privacy by prohibiting the abortion and telling her what to do with her own body. The state argued that abortion was murder and that there was a compelling state interest in protecting the life of the unborn child In this landmark decision, the Court declared that laws prohibiting abortion represented a violation of a women's right to privacy. While the right to privacy does not exist as such in the Constitution, it has long been interpreted to exist as an umbrella created by the first 5 amendments in the Bill of Rights. By creating this precedent abortion became legal in all 50 states Rights of the accused Miranda v. Arizona (1966) Ernesto Miranda was arrested for the kidnapping and rape of a young woman. Upon arrest, Miranda was questioned for two hours. He never asked for a lawyer and eventually confessed to the crime. Later, however, a lawyer representing Miranda appealed the case to the Supreme Court claiming that Miranda's rights had been violated Miranda was acquitted. The Court ruled that citizens must be informed of their rights prior to questioning. Any evidence or statement obtained prior to a suspect being read his/her rights is inadmissible. This has led to what is commonly referred to as one's "Miranda Rights" having to be read upon questioning or arrest. Note: Miranda was later killed in a barroom brawl, stabbed to death.

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MIRANDA WARNING: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I just read to you? With these rights in mind, do you wish to speak to me? 2.3 Mixed legal systems Mixed systems of Civil law and Common law South Africa, Cyprus, Quebec (Canada), Malta, Louisiana(US)… Mixed systems of Civil law and Customary law China, Japan, South Korea, Congo, Ethiopia… Mixed systems of Civil law and Muslim law Algeria, Egypt, Iran, Lebanon, Morocco… Mixed systems of Common law and Customary law Hong Kong, Nepal, Tanzania… Mixed systems of Common law and Muslim law Pakistan, Singapore, Sudan… Mixed systems of Civil law, Muslim law and Customary law Indonesia, Jordan, Kuwait… Mixed systems of Common law, Muslim law and Customary law India, Kenya, Malaysia… Mixed systems of Civil law, Common law and Customary law Cameroun, Sri Lanka, Zimbabwe… Mixed systems of Common law, Civil law, Muslim law and Customary law Qatar, Somalia, Yemen Mixed systems of Civil law, Common law, Jewish law and Muslim law (Israel) Mixed systems of Muslim law and Customary law (United Arab Emirates) 2.4 Customary or religious law Customary law: To constitute custom, the practices involved require something more than mere usage or habit. They need to have a degree of legality Customary law continues to play an important role, especially in jurisdictions with mixed legal systems such as those in some African countries Religious law: While a number of prominent religious legal traditions co-exist with state systems of law, some have actually been adopted as state law

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The most significant are Talmudic (Jewish), Islamic and Hindu law. All three derive their authority from a divine source: the exposition of religious doctrine as revealed in the Talmud, the Koran and the Vedan respectively •Talmudic law had a significant impact on Western commercial, civil and criminal law •The totality of Islamic law is known as the Shari’a, which means ‘the way or path to follow’. Since Islamic law reflects the will of Allah rather than the will of a human lawmaker, it covers all areas of life and not simply those which are of interest to the state or society •Hindu law, espec...