Comparing Legal Systems

Types of Legal Systems

• Legal systems vary from country to country and can have similarities based on historically accepted justice ideals.
• Many countries employ more than one type of legal system to create a hybrid system.

Common Law Legal Systems

• Developed by judges who issued opinions when deciding cases.
• Examples: U.S. and U.K.
• Principles announced in cases become precedent for later judges deciding similar cases.
• Laws are based on both legal precedent created by judges and statutory laws created by legislatures.
• A jury determines facts, and a judge decides the law to be applied.

Civil Law Systems

• Dates back to 450 BCE, when Rome adopted the Twelve Tables, a code of laws applicable to Romans.
• French Civil Code of 1804 (Napoleonic Code) and German Civil Code of 1896 became models for countries adopting civil codes.
• Laws are created by the civil code and parliamentary statutes, and court decisions do not have the force of law in most civil law countries.
• Adjudication of a case is the application of the code or statutes to a particular set of facts.

Functions of the Law

• Keeping the peace (e.g., making certain activities crimes).
• Shaping moral standards (e.g., discouraging drug and alcohol abuse).
• Promoting social justice (e.g., prohibiting discrimination in employment).
• Maintaining the status quo (e.g., preventing the forceful overthrow of the government).
• Facilitating orderly change (e.g., enacting laws after study, debate, and public input).
• Facilitating planning (e.g., allowing businesses to plan activities and allocate resources).
• Providing a basis for compromise (e.g., settling cases prior to trial).
• Maximizing individual freedom (e.g., granting rights of freedom of speech, religion, and association).

Principles of Law

• Plato: "Human beings do not ever make laws; it is the accidents and catastrophes of all kinds happening in every conceivable way that make law for us."

What is Law?

• A body of rules of action or conduct prescribed by a controlling authority, with binding legal force.
• A system that regulates and ensures individuals or communities adhere to the will of the state.
• Intended to protect persons and their property against unwanted interference from others.

Customs

• Widely accepted expectations of behavior particular to a specific place, time, or society.
• Two elements must be established to show a customary practice has become customary law:
  • Consistent and recurring action (or lack of action if the custom is one of noninvolvement).
  • Observing the custom must regard it as binding.

Jurisprudence

• The philosophy or science of law.
• Understanding the philosophy behind the existence of law is important for understanding:
  • Justification for legislation.
  • Judicial reasoning applied when interpreting laws.