Legal systems

Definition

A legal system is a procedure or process for interpreting and enforcing the law.

Overview

There are hundreds of legal systems in the world. At the global level, international law is of great importance, whether created by the practice of sovereign states or by agreement among them in the form of treaties and other accords. Some transnational entities such as the European Union have created their own legal structures. At the national level there are over 180 sovereign states in the United Nations Organization. Many of these are federal, and their constituent parts may have their own additional laws.

But, despite this great variety, it is important to begin by emphasizing the division between religious legal systems and secular legal systems. Each holds quite different views as to law, in its source, scope, sanctions, and function. The source of religious law is the deity, legislating through the prophets. Secular law, however, is made by human beings. In a religious legal system disputes are usually adjudicated by an officer of that religion, so the same person is both judge and priest. In a secular system, by contrast, the office of judge is separate, and is often reinforced by guarantees of judicial independence. 

Nowadays there are few countries whose legal system is exclusively religious. By contrast, a large number of countries have secular systems, and this feature may be built into their legal structure, as in the 1958 French and the 1993 Russian constitutions, or the very first words of the First Amendment to the American Constitution: 'Congress shall make no law respecting an establishment of religion'.

A number of other countries have dual systems. In such a system, religious rules govern, and religious courts adjudicate on matters such as marriage, divorce, and family relationships. However, a secular system with state courts covers the wider fields of public and commercial law. This was the position in England until the 1850s, and is the case today in Israel, India, and Pakistan. In these dual jurisdictions, the proportion of human activity governed by one or the other system may depend on the stage of economic and political development of the country in question.

Constitutions

Constitutions differ widely. Some handle serious internal ethnic, linguistic, and religious differences, while others are written for a homogeneous population. Some are largely restricted to a set of justifiable rules of law, while others contain manifesto-like proclamations A few are contained in no given text or texts, notably in Andorra, Israel, New Zealand and the United Kingdom. 

Typically there are only a few generalizations that may be made across various constitutions. First, constitutions aspire to regulate the allocation of powers, functions, and duties among the various agencies and officers of government and to define the relationship between these and the public. Second, no constitution, however well designed, can protect a a political system against effective usurpation. Third, in many countries the holders of power ignore the constitution more or less entirely. Fourth, even where constitutions work, none is complete: each operates within a matrix of compromise, custom or caselaw. Fifth, most begin by identifying (at least on paper) the constituent authority (such as 'the people') and often invoke the deity (i.e. Canada, Germany, Greece, Ireland, Pakistan, Switzerland). Sixth, they usually separate the legislative, executive and judicial organs of state. Seventh, they usually contain, or incorporate, a Bill of Rights. Eighth, they often provide some method for annulling laws and other instruments which conflict with the constitution, including the Bill of Rights. Ninth, they address the international scene only in generalities and, in practice, confer wide powers on the (federal) executive. Finally, they deal with the status of international law by either according or denying it direct internal effect.

Adoption and amendment

The idea of endowing a country with a single written constitution is relatively modern, though now widespread. In a large number of countries the constitution follows some decisive event in national history, such as war, revolution, or independence. Both legal and political importance attach to the methods by which a constitution may be amended. They may divide the amending power among people, legislature, and executive, or between a federation and its components. They may express basic values by declaring certain features to be unamendable. Some constitutions specify that certain matters may be amended only by referendum or by an entirely new constitution. In federal systems, amendments normally require special majorities in the federal legislature followed by ratification by a special majority of the states. .

A common method is to require a special majority in the legislature - two-thirds in Germany, three-fifths in France, with similar systems in India and other Commonwealth countries (and this used to be the pattern in the Soviet bloc). Another parliamentary alternative is to require a second vote (Italy, Denmark, Finland). Finally, some systems divide the amending power between legislature and people, by requiring a referendum either for certain types or methods of amendment (Denmark, France, Ireland) or for any (Japan).

Federalism

In federal constitutions, listed powers are often allotted to the center governing structure, with other powers being left to the constituent parts. In practice the main powers of defense, taxation, and commerce go to the center, while education and healthcare may go to the constituent parts. The constituent parts are protected, at least in theory, by representation within the center governing structure (i.e. United States Congress) and by their own powers of governance in their territories.

General Constitutional Features

Although constitutions vary greatly in length, usually the greatest detail is devoted to the legislature and to the executive and the relations between them. Federal systems naturally have a bicameral legislature. But so also do many unitary systems, with the lower house directly elected and the upper composed of those perhaps representing rural interests (France) or possessing special skills (Ireland). In most countries (but not the USA) the lower house can ultimately override the upper.

Two widespread patterns are those of the presidential and those of the parliamentary system. The first fuses ceremonial and political power into one office, with its incumbent elected directly and quite separately from the legislature: it is thus quite possible (and in the USA, common) for the President to be of one party and a majority of the legislature of another. It separates executive and legislative powers so that neither body can dissolve the other: the President is removable only for serious crimes, in which the legislature acts as a tribunal. The President nominates Ministers for confirmation by the legislature, but there is no collective cabinet responsibility. The President usually has a veto over legislation, which may be overridden only by special parliamentary majority. On the other hand, the crucial power to tax remains with the legislature.

The new Russian structure embodies several of these features, but expands the presidency in a number of ways. First, following a tradition going back to the Tsars, the office of the President is given wide power to rule by edict (ukaz). Apart from the need to comply with the constitution and with federal legislation, this power seems virtually unlimited. Second, the President appoints the prime minister (with the consent of the lower House) and may dismiss the government. As in the US, the Russian President may veto legislation, but can then be overridden by special majority. Finally, the President can dissolve the lower House and call new elections if it thrice rejects his or her candidate for premier, or if it passes a motion of no-confidence in the government.

In the parliamentary system, the Head of State is distinct from the head of government - called Prime Minister, Premier (or, in Germany, Chancellor). The Head of State may be a hereditary monarch or directly elected President. However, the premier is not directly chosen by the electorate, but appointed from the majority or coalition group in the legislature. The Premier and other ministers have no fixed term of office but can in principle be forced to resign by parliamentary vote of no confidence in the government. This is usually balanced by executive power to dissolve the legislature and call new elections (although there may be some protection against hasty or repeated dissolutions). The premier and ministers dominate in two directions. First, although on paper the Head of State's powers look impressive (convoke the legislature, promulgate laws, grant pardons etc), in practice these are exercised on the instructions of the government. Second, the executive controls the legislative timetable and usually has the exclusive power to introduce finance bills.

Some systems are a mixed parliamentary/presidential structure. For instance in France the President is far from being merely a titular Head of State. Since 1962 he or she is directly elected by the people, appoints the premier, has emergency powers, and signs the regulations emanating from the executive's very extensive lawmaking functions. In association with the government he or she can present bills to the people to enact by referendum, thereby bypassing the Parliament, and can dissolve the National Assembly and call new elections.

The Judiciary

The United States is virtually alone in allowing a federal court of general jurisdiction to decide matters of constitutionality. Normally such questions are for a Supreme Court or special Constitutional court. France innovation allows bills to be referred to the judiciary only after they have passed through Parliament and before they are promulgated by the President. In England a court can examine the validity of a duly enacted statute unless it conflicts with the law of the European Community; the same may be true of Scottish courts, although some say they could examine UK statutes for conformity with the Act of Union 1707. Under the United Kingdom's Human Rights Act, courts within the United Kingdom are able to declare a statute incompatible with the rights enshrined in the Act. This does not invalidate or render the statute ineffective: it is then up to the executive and ultimately the legislature to decide what to do about the offending legislation.

Emergency powers

The greater the constitutional commitment to a Bill of Rights, the more difficult it is to frame emergency powers. On the one hand the executive must be permitted to take emergency action; on the other the emergency power should not be capable of being used to subvert both the legislature and the Bill of Rights. The usual safeguard is to forbid the executive to use emergency powers to suspend, or curtail the power of, either of the other branches of government. 

In the UK a permanent statute permits the government to proclaim a state of emergency, but regulations are subject to Parliamentary scrutiny. Special powers to deal with threats to security in Northern Ireland have been enumerated in statute. The statutes restrict freedom of association and confer wide powers of arrest without warrant and, in Northern Ireland, limit the use of release on bail and jury trial. These statutes are subject to annual renewal by Parliament.

Human Rights

The older pattern of constitutional protection of human rights is usually expressed by a negative: Congress shall make no law abridging the freedom of the press; the right to keep and bear Arms shall not be infringed; the right to be secure shall not be violated; no person shall be deprived of life, liberty, or property without due process of law. This century has seen the addition of positive claims on the state - to education, employment and so on - and entitlements against discrimination on the grounds of gender, religion, nationality and the like. Such provisions are often declared to be entrenched and to bind the government. 

Common Law and Civil Law

Most modern legal systems may be describes as either common law, civil law, or a mix of the two. 

A purely common law system is created by the judiciary, as the law comes from case law, rather than statute. Thus a common law system has a strong focus on judicial precedent. A pure civil law system, however, is governed by statutes, rather than by case law. 

Common law is typically found in places once occupied by the British, such as: Ireland, the United States, Canada, Australia, New Zealand, India, Pakistan, Kenya, Uganda, Zambia, Nigeria and Ghana.

Civil law is typically found in places once occupied by the French, such as: Belgium, the Netherlands, Mauritius, Quebec, Louisiana, Italy, Egypt, Algeria, Tunisia, Morocco, Sub-Saharan Africa, and Spain. and Latin America.

'Mixed' Systems

In the first group are countries with a 'mixed' system influenced by both civil and common law. The older uncodified civil law of Holland is the basis of the Roman-Dutch law of South Africa, Zambia, Namibia, Lesotho, Swaziland, Botswana and Sri Lanka; it is marked by a rich juristic literature stemming from Hugo Grotius (de Groot) in the 17th century. But their long contacts with Britain mean that their public law and systems of court procedure owe much to the common law.

Scotland, Louisiana, Mauritius and Quebec are examples of a private law based on older civil and customary rules (uncodified in Scotland) struggling to endure in a common-law environment. Israel has a system all its own, where the older Ottoman and British mandate layers are now overriden by a modern system. It has no single constitutional document, but much of the modern law combines the broad legislative simplicity of the great codes of civil law with the careful transparency of the common-law judgment.

Criminal Law

Criminal law often has its own unique sort of rules and procedures for defining crimes, providing sanctions, establishing guilt in court, and creating punishments and rehabilitation.

Whatever their origin, most legal systems agree on certain basic premises. First, that no one can be guilty of a crime unless the offense is defined as such beforehand, and the conviction arrived at by a lawful procedure. Inherent in this is the requirement of clarity in criminal law, a prohibition against its retrospective effect, and certain notions of 'fair trial' and the availability of legal representation. Second that no one can be prosecuted twice for the same thing. Third, it is a crime to attempt a crime, or to conspire with others to commit one. Fourth, an alleged criminal needs to have a certain mental state in order to be convicted of the crime.

Most systems accept that criminal liability is not to be imputed to certain classes of people: the very young or persons under severe mental illness. Systems also recognize a number of mitigating circumstances such as self-defense or provocation. 

Private Law

Private law is the name commonly given to that vast area dealing with the legal relations between persons. It covers matters of pure status (marriage, divorce, kinship and so on); matters involving assets of some sort (property, succession, contracts); and commercial activities in the wider sense. Its essential feature is that the participants are presumed to be juridically equals (unlike the public law structure where relations are hierarchical) so that one cannot give orders to another, unless so authorized under some previous contractual or family arrangement. Private law serves to cut down the cost of legal transactions by providing a set of patterns which citizens may use if they wish. But private parties are also free to modify these patterns (i.e. modifying a contract before it is signed).

Ultimately, private law deals with persons, property, obligations and liability.

Persons

Private law defines who counts as a person able to enter into legal relations and deals with their legal capacity (so as to protect the very young or the mentally ill). These natural persons may set up other 'artificial' legal persons, such as associations, foundations, and corporations.

Property

All these persons may own property and hold it for its own sake (house, clothes etc) or as a business or investment (office blocks, factories, shares, savings accounts). Only the socialist systems attempted to prevent this second function of property by forbidding private persons to own 'the means of production'. The property involved may be tangible, and is often characterized as immovable and movable (or under common law, realty and personalty). Property may also be intangible, such as debts, copyrights, and patents. If the owners have full legal capacity, they may normally deal with their property as they please, subject to rules of public policy (such as zoning regulations). They can deal with their property during their lifetime or by will, although many systems ensure that some of the deceased's property goes to near relatives.

Obligations

Persons may incur obligations voluntarily by entering into a contract (i.e. employment, purchasing a house, borrowing on the security of a mortgage, taking out an insurance policy, etc). They also incur the obligation imposed by tort law to compensate others for certain harms.

Liability

The structure of private law is governed by liability. If a party does not perform its part of an obligation, it may face liability for such a failure. 

Further Reading

For more on legal systems, see this Florida State Law Review article, this University of Berkeley Law Review article, and this Louisiana State University Law Review article.

Acknowledgement 

This article was originally written by Bernard Rudden.