Introduction: profusion and variety
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 or confederal, and their constituent parts may well have their own law.
But, despite this great variety, it is important to begin by emphasizing one great division: that into religious and secular legal systems. Each side of this split 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 is made by human beings, and one of its most famous examples begins with the words 'We, the people'. It follows from this difference in their source that religious laws are perceived to be eternal and immutable, while secular rules can be changed by their makers. Religious law tells people what to believe as well as how to behave, whereas secular law deals with our external actions as they affect others. 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. A further difference lies in the enforcement of the laws: in a secular system sanctions are imposed in this world, and its severest punishment (the death penalty) amounts to forcible removal from the jurisdiction. The sanctions and rewards of a religious system may also occur in this world, but are often to be felt most keenly in the next.
Nowadays there are few countries whose legal system is exclusively religious, though some (mainly Muslim) aspire to this. By contrast a large number 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, which came into force in 1789: 'Congress shall make no law respecting an establishment of religion'.
A number of other countries have 'dual' systems in which religious rules govern, and religious courts adjudicate on, such matters as marriage, divorce, family relationships and possibly family property, while 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, while in some African countries these more private areas are ruled by local ethnic and religious custom. In these dual jurisdictions, the proportion of human activity governed by one or the other system may well depend on the stage of economic and political development of the country in question. This leads to a difficult area of enquiry, of which all that can be said in this context is that in some countries a sophisticated secular system may well exist, but only on paper.
A word should be added here about the place of law in human relations, for different peoples and different epochs have taken very different views on the matter. For some law is an aspiration, for others a blight. Some societies are proud to proclaim 'the rule of law'. Others see it as fit only for barbarians and put their trust in the ethical or customary matrix of the community. For instance, this seems to have been true of China both under the Emperors and in the years of the Cultural Revolution (1966-76). What follows deals with positive legal systems, and not with the views of a given time or people as to the place of law within society. Such matters are proper to a study of comparative ideology, politics or sociology. At the same time, the reader should remember that the underlying justification for the legal system is often perceived in broader terms than mere utility. This is well illustrated by the Canadian Constitution Act 1982 which begins by stating that 'Canada is founded upon principles that recognize the supremacy of God and the rule of law.'
Although each system has its own individuality, it is possible to group many of them into legal 'families'. The advantage of this is that, if successful, it saves time and energy in description or prediction. Inevitably, of course, classification depends on the criteria used. In the past, legal systems have often been grouped by geography, race, language, religion, or official ideology. Here, it seems more useful to classify in terms of the systems' substantive features, and to devote most attention to the larger families.
The result of classification will differ greatly depending on whether we concentrate on public or on private law. With the former, our criteria would be the state structure and the relations of government entities (including the courts) with each other and with the citizen, and the field would range from constitutional law through administrative and tax law to the penal system. The latter classification, more traditional but very useful in some respects, looks mainly at how a legal system treats the law governing relations between private persons, including such matters as their property, their testaments, marriages, contracts and so on. Thus a country may resemble one family for private law purposes and another for those of public law. For instance, the private law of England stems from the 'common law'. That of Scotland does not. But both are governed by the same constitution which, unlike those of most common-law countries, is not written in one document and does not limit the ultimate powers of the legislature.
Constitutions differ widely, and for good reason. Some have to provide for a federal structure, some, although unitary, include quite different legal systems within the one state (e.g. Britain, Canada). Some have to 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 and show a tendency to the picturesque by, for instance, the adoption of a national animal (always attractive, but rarely edible). Some are never meant to be taken seriously. A few are contained in no given text or texts, notably in Andorra, Israel, New Zealand and the United Kingdom. Of these four, only the last will be discussed in any detail.
The differences in constitutional features have two different motivations. The first is practical: obviously a federal document will contain material absent from a unitary one. The second feature is the existence of value preferences prompted by national history. The constitution-makers in different countries, or at different moments in the history of any one country, have quite different preoccupations. The reason they are drafting a new constitution is a change in circumstances. Thus all constitutions contain elements that are autobiographical and so idiosyncratic. Different historical contexts have generated different preoccupations and priorities, and these in turn have led to quite different constitutional structures. Even among those drafters who admired the oldest enduring text which lies to hand - that of the USA - it is striking that, while its first three words ('We, the people') and its Bill of Rights may be often imitated, no one ever copies the structure of the Constitution itself.
For these reasons the only generalizations that can be reasonably be made are the following. 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 (e.g. 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, so that the UK is one of the rare exceptions. Furthermore in a large number of countries the constitution follows some decisive event in national history: war, revolution, independence, federation and the like. This ensures that methods of adoption vary widely. The oldest and most prestigious - that of the USA - was adopted by agreement among the 13 states followed by ratification by elected conventions within them; its Bill of Rights (technically, if confusingly, called Amendments) was ratified by the State legislatures. By a seemingly similar method, but in the very different circumstances of the defeat of Nazi Germany, the constitution of the Federal Republic of Germany, finally approved by a Parliamentary Council and called the 'Basic Law', entered into force when notice of its ratification by representative assemblies in over two-thirds of the Laender was published: on 23 May 1949. By contrast, one of the most recent documents - that of the Russian Federation - by-passed the legislature (which the President had dissolved) and was voted directly by the people on 12 December 1993. According to the official returns, 54.8% of the electorate voted, of whom 58.4% were in favour. In between these two methods are many other techniques such as that of the 1958 French constitution which involved both approval by the legislature under procedure laid down by the existing constitution and then by the people in a referendum.
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: the republican form of government in France and Italy, and in Germany the basic human rights and the federal structure. Some constitutions specify that matters like this may be amended only by referendum or by an entirely new constitution (e.g. the new Russian document). In federal systems, amendments normally require special majorities in the federal legislature followed by ratification by a special majority of the states. This is the US provision, now adopted for some types of amendment by the Russian Federation.
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 (e.g.Japan).
Unlike the systems just described, the UK constitution is indeterminate, indistinct and unentrenched. It is found in no single constitutional document. The volumes entitled 'Constitutional Law' in the official edition of the 'Statutes in Force' print 138 Acts of Parliament, while a quite separate volume on 'Rights of the Subject' gives another thirty-two, including what is left of Magna Carta 1215. Furthermore many matters in written constitutions, such as the procedure on a finance bill or a vote of no confidence, are governed entirely by custom, convention and Standing Orders of the Houses of Parliament. The basic constitutional instruments are presumably those of 1707: the Treaty of Union and Acts of Union of the English and Scottish Parliaments. From 1800 Ireland was also part of the UK until the Ireland Act 1949 finally admitted that it was no longer part of His Majesty's dominions. Since 1922 the UK has in effect consisted of Great Britain and Northern Ireland.
The British constitution is indistinct in that there is no way to tell whether 'ordinary' laws are in conflict with those forming part of the constitution (although since 2 October 2000 the courts may declare that a particular statute (though still valid) is incompatible with the Human Rights Act 1998. The constitution is unentrenched in that any element may be changed by an Act of Parliament passed in exactly the same way as any other piece of legislation.
In federal constitutions, listed powers are often allotted to the center, with the residue being left to the constituent parts. In practice the main powers of defence, taxation, and commerce go to the center, and federal laws override others. The constituent parts are protected, at least in theory, by representation in the upper house and by their own powers of governance in their territories. In this regard, the Russian Federation continues the USSR's system of a multi-level system of constituent parts to accommodate the polyethnic mix, though the old secession clause is gone. Broadly speaking the component entities retain the relative status accorded to them on paper when they were parts of the RSFSR which was itself within the Soviet Union: and the roots of the divisions are more a matter of geography and ethnic history than of politics.
The UK is not a federation, but it embraces four different legal systems: of England and Wales, of Scotland, of Northern Ireland, and - for general matters such as tax and for international purposes - that of the UK. In addition, the British government is responsible for the defence and international relations of the Channel Islands and Isle of Man, which are not part of the UK. Their citizens are not represented in (and therefore not taxed by) the UK Parliament, their basic legal system is not that of the mainland and, with their consent, laws are made for them by the Queen in Council (i.e. the British executive).
General Constitutional Features
Although constitutions vary greatly in length, usually the greatest detail is devoted to legislature and 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 grave crime, 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, but 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 the 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.
When it comes to the judiciary, separation of powers is apparently taken quite seriously, although in England this is obscured by the fact that the upper House of the legislature has the same name as the highest court, and its Speaker (the Lord Chancellor) is the senior judge. In many systems, judges are independent and irremovable. In Russia this is expressly stated, but is a frail novelty. In the USA and UK it is not stated but is the case.
The only topic which merits brief discussion here is the relation between the constitution, the courts, and the legislature. The USA is virtually alone in allowing any court of general jurisdiction to decide matters of constitutionality. Normally such questions are for a Supreme Court or special Constitutional court. The French innovation allows bills to be referred 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. Since October 2nd 2000, when the UK Human Rights Act took effect, English courts 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.
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. Whether such provisions are effective in any given country is a matter of politics, not law. 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 on the statute book for most of the twentieth century. 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. They are subject to annual renewal by Parliament.
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 legislature, executive and judiciary. To what extent these Bills of Rights are effective is more a matter of political power, than of legal technicality.
Common Law and Civil Law
On looking at the historical development and substantive features of the legal systems of the world we can see that many of them fall into one of two families. In the whole of human history only two peoples seem to have founded a secular, comprehensive, enduring, and widespread legal system: the Romans of the Ancient World and the Anglo-Normans of the Middle Ages. The pedigree of the civil law goes back to Ancient Rome, although the later customary family law, and the canon law of procedure have also marked the system. The Common Law world begins in England. Of course within each family there are major differences between individual members, but each is still quite clearly not a member of the other family.
The best way to explain the main elements of the Civil and the Common Law families and to compare and contrast the two is to look at the following features.
The Common Law was conceived in 1066 and born of a union between older Saxon law and the custom of the Norman conquerors. The Civil Law was older then than the Common Law is now.
The Common Law was nurtured in London lawcourts, by judges and barristers. The older Roman Law was developed - to an important extent - by jurists, who were not practising lawyers but public-minded citizens. It was they who strove to expound, explain and adapt the ancient and sporadic legislation and the edicts of the officials; the high-point of their contribution occurred in the decades around 200AD.
The Common Law spread only by conquest and colonization: no one ever accepted it freely (and the countries of the former Soviet bloc are taking their models from the civil law, not the common law). The Roman part of the Civil Law, preserved in Justinian's collection of 533AD, was rediscovered in the 11th century, embraced by the University law schools of northern Italy (see also here), and spread from them throughout continental Europe. From there, and like the common law, it went to the New World and to parts of Africa by colonization. But, especially in the 19th century, the French and then the German versions were selected as models by countries in the Middle and Far East.
Although originally written in Latin and spoken in Norman French, the language of the Common Law today is virtually only English. Wherever some version of the common law is in force, the native or official language of the country is English. The legal vocabulary, however, is likely to be markedly technical if not arcane and to contain much dead French and Latin. By contrast, the Civil Law is found in most languages.
The main creators of the Common Law are the judiciary: that is to say the matrix, the basic operating system, is laid down by caselaw. Recruited from the ranks of successful practising lawyers, the judges speak with individual and distinctive voices: they lay down the law. The great names are well known in common-law countries, and in the USA and Canada the highest court is an institution of enormous power and prestige. In civil-law systems, at least until very recently, judges played the comparatively minor role of settling the dispute in front of them. They did not make the rules of the system, and their decisions are not cited in later cases. Appointed to the Bench in their middle to late twenties, they are civil servants who, in principle, rarely sit alone but in groups of three. They are trained to produce just one decision - that of 'the court' - written in the dry laconic prose of a bureaucrat.
Of course the modern countries of both systems produce large amounts of legislation. But that of the common-law countries tends to be piecemeal. Save for the constitution, and fiscal matters, basic principles are not enacted (except as codifications of existing caselaw in such statutes as the Partnership Act). The typical statute merely adjusts some detail of the rules laid down by the courts. In complete contrast, modern civil law systems tend to think of themselves as 'codified'. The word 'code' in this context means that a whole area of law is laid down in one legislative document which aims to provide a closed, coherent and consistent set of propositions which, if used in good faith, can be applied to solve any dispute in that area. The most obvious example is that of a criminal code. Historically, however, the most influential models have been the civil codes of France (see also here) (1804) and Germany (see also here) (1900). These deal with non-criminal private law, that is the rules on persons and family, property, wills and intestacy, contracts, torts and so on. Such codes also provide the general pattern of thought in the whole legal culture, acting as a default system for gaps elsewhere (for instance in the laws regulating employment or the environment). So important are they that a French lawyer will call the Civil Code 'le droit commun' (the common law) and will aver that French law is codified. It is not: administrative law and conflicts law are found in no coherent code; but the assertion illustrates the impact of the great Civil Code.
Where the basic principles are contained in an enacted code, this is the source of the law. Judicial decisions do not make law because they do not need to. So, for instance, the Austrian Civil Code 1811 - which lays down the basic rules of private law - can sensibly provide: 'Decisions in individual cases and the opinions handed down by courts in particular lawsuits never have the force of law; they cannot be extended to other cases or to other persons.' ('2) This approach is fortified by the historical fact that civil-law judges did not see their job as creating law, the professional fact that they are career civil servants, and the political fact that it is thought more democratic to entrust lawmaking to the elected representatives of the people. Common-law perceptions are quite different. Historically, the judges made the law. Furthermore, to this day the legislator in common law countries does not lay down the basic rules of the legal system. But they are needed, and so a notion of precedent comes into being. For instance, the English parliament has never defined murder, never laid down that you must keep your contracts, or pay compensation for damage unlawfully caused to others. Since such definitions and rules are necessary, courts and lawyers can find them only in earlier caselaw. And since it would be absurd and unfair if judges could re-make the basic law of murder or of contract in any case before them, a rule of 'precedent' binds them to the law as declared by higher courts in their jurisdiction. This means that, in deciding a legal issue, the common-law judge must come to terms openly and honestly with any rule laid down by precedent, just as a civil-law court has to face up to the rules laid down by the legislator. The doctrine of precedent is an operating rule of a common-law system: so the rule itself was never laid down by a legislator. It is a judicial creation and can be amended or adapted by its makers. So in England, for instance, the highest court (the House of Lords) held in the 19th century that it was bound by the law laid down in its own prior decisions. In the 1960s is amended that rule and gave notice that it was now free, to change its mind. Lower courts, however, are bound by the highest court's rulings on matters of law.
Legal disputes are as much about fact as about law. The work of the lower courts, in particular, is very largely taken up with determining issues of fact. The common law and the modern civil law both developed in territories where such matters were decided by ordeal, oath or battle. On discarding these methods, the two systems took different paths. The judges who built up the common law system were few in number, and left the hard work of fact-finding to non-lawyers: the jury, originally of neighbours who might be thought to know the background, and then of disinterested strangers empanelled to hear the evidence and decide. Nowadays only the USA makes much use of the jury for non-criminal matters (as required by the VII Amendment), but its ghost rules the procedure of all common-law countries. The very word 'trial' suggests a single, continuous and relatively short session in which all the evidence is presented to a jury who knew nothing about it beforehand. Similarly, there is no need for the judge to be acquainted with the case before the trial begins. The proceedings are oral, since that is the quickest and most effective way of conveying information to a number of laypersons. And their verdict is difficult to overturn, since an appellate court has not heard the evidence directly nor seen the witnesses in person. The civil law systems, by contrast, have always left the task of finding the facts to a professional judge. This has a number of consequences. First, there were always far more judges in civil- than in common-law countries. Second, the judge could be given more control from the outset of the dispute in deciding which witnesses to call and what questions to put to them. Third, the procedure could be more sporadic, spread over a number of sessions, and reduced to writing: the civil-law word often mistranslated as 'trial' is le procPs, der Prozess - a better rendering is 'the proceedings'. Fourth, the rules of evidence can be flexible, since a professional judge is presumed capable of accurately assessing testimony. Finally it is easier for a higher court to correct or revise a decision.
One result of the above features is that in common-law countries the legal system is not organised in a coherent and clear structure. Its development tends to be incremental and casuistic, and it is not easy for the foreign lawyer to approach. Civil lawyers, on the other hand, lay great emphasis on system and structure. Furthermore, they tend to follow similar patterns in their organisation of legal topics, and once these are understood it is relatively simple to locate the law on any given topic.
Some version of the common-law is found today only in places once occupied by the British, among them Ireland, the USA, Canada, Australia, New Zealand, India, Pakistan, Kenya, Uganda, Zambia, Nigeria and Ghana. But (except for the special case of Israel) no country which has the common law seems able or willing to get rid of it.
So far we have spoken of the Civil Law in general, in comparing it to the Common Law. Within the former family, however, there are two great sub-branches. For one of them the French approach has largely been the model, for the other the German. The French have, directly or indirectly, influenced Belgium, the Netherlands, Mauritius, Quebec, Louisiana, Italy, Egypt, Algeria, Tunisia, Morocco, Sub-Saharan Africa, Spain, Latin America. The German model was followed later in such countries as Japan, Greece, Thailand, Taiwan, Portugal, Brazil.
Some systems, while recognisably those of the civil law, have rather gone their own way in the organisation of their private and commercial law, for instance Austria (1811) and Switzerland (1907, 1911). Finally there has been much rethinking of the heart of private and commercial law in Quebec and the Netherlands and both have recently adopted an entirely new Civil Code.
Those countries of Eastern Europe which, before they became Soviet satellites, had their own civil-law systems (such as Poland, Hungary, and of course the German Democratic Republic) have turned again to their earlier tradition.
Outside the two large legal families are a number of systems, some relatively easy for a Western lawyer to understand, others much more remote.
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, on the other side of the ocean, 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.
The legal systems of Denmark, Finland, Iceland, Norway and Sweden do not fit neatly into the civil-law pattern. Their original Germanic public and private law was collected in legislative form long before the rationalising fashion of the French model: in Denmark (1683), Norway (1683), and Sweden-Finland (1734). Marked by relatively small populations with a high standard of living, economic efficiency and the ideals of the modern welfare state, they have adopted much uniform legislation especially in the fields of commerce and family law.
Until recently, the USSR and its satellites proclaimed that their socialism was producing an entirely new form of law, not to be judged by or even compared with the older systems. This view was said to be the scientific conclusion of a Marxist analysis. Even in those days, however, the systems' documents looked, on the surface, familiar: constitutions and civil codes many of whose rules bore - at least on paper - a strong resemblance to the traditional provisions.
The USSR's peaceful disintegration into 15 sovereign states has provoked much activity in fashioning new structures. Most of the states by now have a new democratic constitution and are drafting the rest of the legal system. Among the last acts of the old USSR was the enactment of a comprehensive framework of Basic Principles for private law. It was used in Russia as an interim instrument until the Civil Code of November 1994. In time the statute book will probably look much like those of the civil-law German-speaking countries. More problematic is the personnel to run the system, in the shape of lawyers and, above all, of judges who are well-trained, wise, and honest.
From its inception in 1949, the People's Republic of China's declared aim was to attain socialism. It abrogated all earlier legislation and during the next decade much of the formal law appeared inspired by Soviet models. But the 'Great Leap Forward' of 1958 emphasised ideological leadership, law was denigrated and degraded during the Cultural Revolution (1966-76), and it was not until the 1980s that something resembling a recognisable legal system began to appear. Under the 1982 Constitution (see also here), China - despite its size - is not a federation. The People's Congress is the named legislator and the 'executive' is the State Council, although much power remains with the Chinese Communist Party. The pre-Cultural Revolution legal structure has been partly resurrected, and a legal framework of codes enacted. The Basic Principles of Civil Law contain many provisions that would be familiar to Western jurists. The actual functioning of the system, however, is affected by the persistent attitude that makes law subordinate to the decisions of central and local political authorities.
The number of Muslim countries is growing, but the main common feature is the Islamic religion which aims to cover all areas of life, not merely the spiritual. It thus has the features of a religious system of law, as described above. In its strongest formulation, some Islamic scholars state that law cannot exist outside religion and therefore the state has no power to legislate. But in practice the religion is found in countries with very different histories, whose formal legal systems vary from the absolute sovereignty of some Gulf states through the French and Swiss-influenced codes of Egypt and Turkey, the common-law patterns of Pakistan and India, the Soviet structures of the central Asian republics, to the revolutionary councils and tribunals of Iran.
Unrivalled in age and continuity, the Hindu law found in India, Myanmar, Nepal, Pakistan, Malaysia and parts of East Africa is contained in a literature which is vast, complex and seemingly impossible to summarise. Its laws and customs are derived from sages of the past who were themselves taught by a creator, it preaches the birth, death and rebirth of living things, and its precepts cover many more activities than does any secular legal system. In the countries mentioned, however, it governs only the personal and family relations of those involved and its family law has been codified and much amended, especially in India. Nonetheless it can affect the lives of some 450 million people.
In many parts of the world unwritten local or tribal custom sets the standard of behaviour and provides for conciliation and dispute settlement. Most of the African countries, for instance, have a formal constitutional and commercial law inspired by French, Belgian or British models but remit the relations between private individuals to the appropriate customary framework.
Crimes are wrongdoings seen from the point of view of the society in which they occur: the convicted wrongdoer may be punished. Torts include the same wrongdoings seen from the point of view of their victim: the wrongdoer may be ordered to pay compensation. Sins include the same wrongdoings seen from the point of view of a faith; they call for repentance and atonement. Thus all three systems agree in condemning the most common acts of wickedness - murder, rape, robbery, violence, theft and the like. Once such acts occur, however, the secular responses seem in practice weak. Relatively few crimes are solved, few criminals convicted. Almost never are they made to compensate their victim.
Nonetheless many societies attach great importance to a system of criminal justice: laws which define crimes and provide the sanctions; procedural rules for establishing guilt in a court; and a set of methods and places of punishment and rehabilation. Furthermore the types of actions declared to be criminal are, in all major matters, much the same everywhere.
As with the area of the ordinary non-criminal private law, the system in the 'civil law' world has developed from two main sources: first the Napoleonic codes of penal procedure (1808) and penal law (1810), and then the German penal and procedural codes (1871, 1877). A key figure in the criminal procedure of many civil-law countries is the juge d'instruction who supervises the pre-trial stages. The use of a jury is uncommon save for very serious crimes, though Russia is introducing the system. On the other hand the first instance tribunal often comprises one judge and two lay persons, all of whom deliberate together and decide on guilt and sentence. Another common feature (at least in theory) is the presence of the victim as 'civil plaintiff', so that the same court can convict the accused, assess the victim's injury or damage, and order the accused to pay compensation.
Countries of the 'common-law' world began from the English criminal law but, unlike England, now normally have a comprehensive and coherent penal code (the British parliament has never defined murder: this has been left to the courts). A typical feature of these 'common-law' systems is that, for all save relatively minor offences, the decision on guilt or innocence is taken by a jury of lay-persons selected for that case: this has a profound effect on the conduct of a trial and the presentation of evidence. Another feature is that the victim who seeks compensation must start another lawsuit before another court.
Whatever their origin, most legal systems agree on certain basic premisses. First, that no one can be guilty of a crime unless the offence 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 that deliberately criminal conduct can be punished although it did not succeed - it is a crime to attempt a crime, or to conspire with others to commit one.
The fourth common premiss is harder to explain. The essential ingredients of a crime contain both a factual and a mental element. The first covers certain (not involuntary) human conduct in certain circumstances, and sometimes with certain consequences: for example stealing involves taking someone else's property; on a charge of homicide the prosecution must prove that the victim is dead. The second means that it must normally be shown that the accused deliberately or recklessly did the forbidden act. The important point here is that, as a general principle, mere carelessness (or stupidity) is not a crime calling for punishment, but at worst a tort calling for compensation. Thus if you make off with my raincoat, honestly thinking it yours and not even seeing the risk that it might not be, you are not a thief: you did not deliberately or recklessly intend to take someone else's property. Of course if my name is marked inside it then you may have been careless, in which case you may owe me compensation. But you are not a criminal: stealing is dishonesty and you were (though negligent) perfectly honest. To this general principle there are important exceptions: careless driving is an obvious example and, where death is caused by gross negligence there may some homicide charge less than one of murder. Furthermore in many systems a number of (relatively slight) offences may be committed without any mental culpability at all. The reasons given for this include the need to protect the public and the difficulty of proving any mental element. Examples include the use of unroadworthy vehicles on a public highway.
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 recognise a number of exculpating or mitigating circumstances such as self-defence, provocation, suicide pacts and the like.
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 authorised under some previous contractual or family arrangement. Its essential technique is that much of it is not automatically binding (jus cogens in lawyers' language) but serves to cut down the cost of legal transactions by providing a set of patterns which citizens may use if they wish. For instance the intestacy rules operate only if a person dies without having made a will. The rules on sale, lease, loan, partnership and so on are there as models which can be adopted in full, or modified if the parties so desire.
In countries of the Civil Law group these three areas of status, assets, and business may be dealt with in separate codes of Family Law, Civil Law (using the word in a narrower sense) and Commercial Law. In the common-law world the basic system is laid down by caselaw, although there are many modern statutes which often re-state and systematise the work of the judges.
Despite the many differences on the surface and in particular detailed rules, the overall structure of private law in both civil and common-law systems can be stated quite simply in a formula derived ultimately from the Roman jurists: private law deals with persons, property, obligations and liability.
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). Since the abolition of slavery, all human beings count as persons. Furthermore, these natural persons may set up other 'artificial' legal persons such as associations, foundations, and - most important - business corporations.
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 divided for legal purposes into immovable and movable (or 'realty' and 'personalty' in the obscure jargon of the common law). It may also be intangible, such as debts in the hands of a creditor, stocks and shares, copyrights, patents and so on. If the owners have full legal capacity (i.e. are sane adults) they may normally deal with their property as they please, subject of course to rules of public policy, zoning regulations and the like. 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.
Persons may incur obligations voluntarily by entering into a contract - for instance to get a job, buy a house, borrow on the security of a mortgage, take out an insurance policy. They also - whether they like it or not - incur the obligation imposed by law (the law of tort) to compensate others for unjustified harm caused them deliberately or carelessly. Likewise imposed by law are the duties which stem from family relationships.
The structure of private law is sealed by the following rule, now almost universal: a person must answer with his or her property for performance of all obligations. So, if the worst comes to the worst, most of a debtor's assets can be taken by process of execution. Human beings can be made bankrupt, and corporations liquidated.
This article was originally written by Bernard Rudden