Law and Legal Systems Around the World - PDF

LAW AND LEGAL SYSTEMS AROUND THE WORLD Business Law W eek 1 TODAY’S MISSION! T H E T Y P E S O F L AW AND THEIR SOURCES C IV IL LAW Private Law Settles disputes between individuals No concept of punishment Major objective- compesating the wronged party There is no requirement o...

LAW AND LEGAL SYSTEMS AROUND THE WORLD Business Law W eek 1 TODAY’S MISSION! T H E T Y P E S O F L AW AND THEIR SOURCES C IV IL LAW Private Law Settles disputes between individuals No concept of punishment Major objective- compesating the wronged party There is no requirement of proof- Use of “balance of probability” Sued in court Compensation payable in case of liability Parties involved are plaintiff and defendant. Judgement is passed by the Civil Law judges. Personal action brought forward by the wronged/ aggrieved party Damages or Equitable remedy may be awarded by court based on appropriateness. C I V I L L AW C O N T I N U E D Role of the Judiciary in Civil Law Systems Civil law judges are legally qualified professionals. They apply and enforce the law and decide criminal and non-criminal cases. The use of a jury is unusual in civil systems. The role of the judiciary in Civil law states is to apply the principles to the cases they meet. The judge is the “la bouche de la loi” (the mouthpiece for the law) rather than its originator. Civil judges generally do not interpret or re-interpret the law. Their function is to apply the law in line with what it says and with the social purpose for which it was created. If a “new” situation arises (for example with the development of new assets, such as ownership of electronic data), they consider the historic intention behind the relevant law and apply the law so as to cover the new situation in line with the historic principle. In most modern countries, the judiciary is empowered: to exercise judicial review over the actions of public individuals and bodies; and to invalidate improper actions and decisions. In some Civil states (e.g. in France and Germany) the judiciary is also empowered to adjudicate the constitutional validity of new laws created by the legislature. In others (e.g., the Netherlands) they have no constitutional right to do so. C IV IL LAW The historic codes have been modified over time by the legislatures of different states and new laws have been developed alongside. Modern civil law countries recognize the law as being contained in: Treaties (e.g. the Treaty of Versailles (1919)); Conventions (e.g. the Geneva Conventions, the Vienna Convention on the Law of Treaties and the European Convention on Human Rights); Their national and regional constitutions; EU law (amongst member states); Their domestic statute and statutory codes and administrative regulations created by, or under delegated powers from, the legislature. C R IMIN A L LAW Involves Public law. The law is broken by a criminal, a wrongdoer. There is a wrong done to society. Criminal prosecuted in court. If he/she is found guilty, they will be punished. Punishments may include community service, fine, imprisonment. Parties vringing the case forward- Prosecutor and accused. Needs lots of evidence, proof should be “beyond doubt” It is the police who decide if a prosecution is required. The decision is reviewed by the crown prosecution service.  C OMMON LAW Development started with effect from 1906 Over a period of 200 years, this law was commissioned common law In civil law systems one only must look in the appropriate code to find the law relating to that area. However, in a common law system one has not only to look at the legislation made by parliament, but also in the cases for the judicial statement that constitute that common law. The development of the common law can be traced back to judges appointed by the Crown in England in late mediaeval times to travel the country, hearing cases, identifying and applying fundamental principles of law, and thereby developing a consistent “common law” throughout the realm. The judiciary also came to be responsible for the interpretation and application of statute. Were subsequently exported to Britain’s colonial and trading partners across the globe. Common law has at its heart a large body of judge-made body of rules, known as case law. Common law is judge-made; statute law is produced by Parliament. recorded in official law reports  C OMMON LAW Decision rests on the principle of ratio decidendi. Which simply means “Reason for the decision” This sets a precedent which must be followed by judges of equal or lower rank dealing with similar situations in the future. common law governs the basic principles of business law. Particularly the law of contract/obligations. The concept of damages is a Common law feature. Common law is augmented and modified by the application of “equitable” principles of fairness and good conscience As far as possible a judge will follow principles set out by judges of equal or higher rank in earlier cases involving the same or similar issues. This principle is known as the “doctrine of precedent”. Statements which go beyond the ratio – obiter dicta – are not binding in future decisions but can be referred to as persuasive authority.  C OMMON LAW A statute will sometimes contain an introductory preamble to explain its purpose and content. Statutes often contain interpretation provisions, defining words and phrases used within them. Judges have devised several conventions by which they interpret words and phrases not clearly defined within the statute itself. Words should be given their literal meaning (unless this would lead to an absurd result) and interpreted contextually, so as not to extend a statute beyond its intended coverage. Words are increasingly interpreted purposively according to the purpose of the statute. most modern countries give the judiciary power to exercise judicial review over the actions of public individuals and bodies, and to invalidate improper actions and decisions.  C OMMON LAW Points to note: A precedent will not be binding in a later case if it was wrong per incuriam – with a lack of proper attention to relevant laws or facts. A precedent will not apply when the facts of a case are materially different, so that it can be distinguished from those before the court in the later case. The precedent (ratio) of an earlier decision by a lower court may be subsequently overruled in another case decided at a higher level. The earlier judgment is not changed, but the precedent is set aside and will not be followed in future. A higher court may also reverse (i.e. overturn) a decision of a lower court on appeal. The earlier decision is nullified. S H A R I A L AW Sharia law is the law of the Islamic religion. It is the most widespread example of religious law. Islam is a monotheistic, Abrahamic religion. It is one of the three major world faiths (the others being Judaism and Christianity). Two broad schools of Islamic thought (madhab) followed respectively by Sunni Muslims (who comprise most Muslims) and by Shi’ite Muslims. The two branches adopt different approaches to juridical thought, or Fiqh (a person trained in Fiqh is known as a Faqih (plural Fuqaha) S H A R I A L AW Guidance and rulings are followed as per: the Qur’an: the central religious text of Islam, containing divine guidance and direction for mankind as revealed by Allah to the Prophet; and the Sunnah: the record of the Prophet’s statements and sayings, known as Ahadith (singular Hadith); and of his deeds; and of his tacit approval of matters which he knew of but refrained from comment. This leads to Itjihad – processes for interpreting and applying the law: 1. Ijma: “the unanimous agreement of the jurists of a particular age on a specific issue” 2. Qiyas: “reasoning by analogy” 3. Aql: deducing the law by intellect or logic, a mechanism preferred by Shi’ite schools. S H A R I A L AW Sharia addresses all aspects of life, personal, business and public. Islamic judges are clerical scholars, schooled in Islamic jurisprudence (Fiqh) Islamic judges must be males of the Islamic faith, of full age and of mature understanding, independent of outside influence, of upright character and capable of independent juristic thinking. There is no trial by jury in Sharia law. However, the judge is assisted by an advisory council of scholars and eminent people, whom the judge appoints, to confer with on matters of Islamic law and to make sure that they are aware of all the relevant information. They will suggest verdicts which can inform the judge’s own reasoning. I N T E R N AT I O N A L L AW “International law” is the system of agreed principles, values, standards and mechanisms that regulate dealings between nations, and between people and businesses in different nations. There are two distinct categories of international law: Private international law describes different countries’ internal mechanisms for dealing with international contracts and recognizing foreign judgements. Public international law governs the relationship between states and international organizations, including international conventions and treaties. I N T E R N AT I O N A L L AW there is no international supreme legislature International law is, generally, a product of agreement across states which consent to take part. there is no international court before which states in breach of international law may consistently be forced to appear I N T E R N AT I O N A L L AW Several international bodies contribute to the formulation and application of international law and cross-border trade regulation. International trade bodies and/or political unions include: the European Union (EU); the Eurasian Economic Community; the Organization of Petroleum Exporting Countries (OPEC); and Mercosur – the Southern Common Market of South American countries.  THE ENGLISH LEGAL SYSTEM CIVIL COURTS HIERARCHY WHY? 1. To make a clear division between legislative (house of parliaments) and judicial authority (since previously the lords of appeal were both members of the house of lords and senior member of the judiciary of england and wales 2. Change the method of appointing judges to the court of appeal. The power to appoint these judges has shifted to a judicial appointments commission. HOW CAN BINDING PRECEDENTS B E A LT E R E D O R AV O I D E D ? Reversing the decision of a lower court Overruling a Precedent Making a distinction between cases S TAT U T E L A W I N E N G L A N D Consists of: Primary legislation (Acts of parliament) Both the house of commons and the house of lords debate and vote on proposed new statutes; however the ultimate power lies with the house of commons. Secondary Legislation (also called delegated legislation) CRIMINAL C O U RT S HIERARCHY