Jurisprudence- Comparison of different legal systems.

Introduction

We in India follow common law systems. It is essentially a system developed in Britain. After colonisation of most part of the word by erstwhile British empire, these colonies had similar law.

Similarly there are other legal systems as well. Comparison and study of these systems help us understanding larger picture of law and jurisprudence. Not only understanding, it often helps us in finding lacunae and do a course correction by studying different legal system.

What is legal system anyways ?

Legal system may be defined as legal rules and institution of given country. For example Soviet legal systems, Islamic legal system.

Why we need to understand different legal system ?

The concept of "One World" or global village in the era of globalisation requires understanding laws of different nations of the world which helps in the development of effective legal systems.

Internet technology brought the world much closer and hence it had become more important to understand different legal systems.

How many legal systems in the world, and do we need to study all ?

There are around 42 legal systems around the world. And relax, we don't need to study all of them. Three legal systems are considered more important because of traditions, peculiarity etc.
These three are
  1. Civil Law System
  2. Common Law System
  3. Socialist Law System (Not that important today!!)
What are characteristics of each legal system that needs to be studied?

  1. Historical background and development. 
  2. Characteristics mode of thought. 
  3. It's distinct institutions. (Court, administration etc)
  4. Sources of laws.
  5. Ideology of legal systems. (Socialism, Capitalism, Religious etc)

Now let's see major two systems

Civil Law Systems

Civil law systems refers to entire system of law which applies to most of the western European Countries, Latin America, Africa, Indonesia and Japan.

This law is derived from ancient Roman law and is derived and originated in Europe on the basis of Roman jus civile-the private laws that was applicable to the citizen, and between the citizen within the boundary of state in domestic context.

Roman Law was divided in three categories
  1. jus naturale- It was law dictated by reason
  2. jus genetum- It was the law applicable to the foreigners
  3. jus civile - Applicable to citizens
It was the earliest law which is studied in two phases
  1. Emperor Justinian Era (AD 527-565)
  2. Revival by Italian universities (11th Century)
Roman law had enormous influence on France and Germany. 

Some characteristics of civil law systems

Codification

Civil law found codification as early as (451-450 BC). XII Tables of Rome is an example. First systematic compilation was done by Gaius Justinian Code also known as Corpus juris. 

This code consisted of below things
  1. The institution
  2. The Digest
  3. The Code
  4. The novels
Division between private law and public law

Institution of court were established for private law of the people. Also division between private and public law was clear.

Administration of justice

Parliament used to enact a law and  justice was administered accordingly. These systems given power to parliament for administration of justice.

Inquisitorial System

"An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense".

Civil law system had inquisitorial system.

Other features

Civil law was greatly influenced by roman law. It had separation of power, clear demarcation of private and public law, categorisation of law(Civil/Criminal etc).

Common Law System

We have this system in India. This have vast followers which include Australia, Singapore, South East Asia, Pakistan, Large part of Africa etc. Wherever British ruled, they left this legal system.

Below are certain characteristics of common law systems

Hierarchical doctrine of precedent

We all know what it means. Supreme Court decision in particular matter in 1960s will be applicable to High Courts, District court etc even today

Centralisation of Courts

Prerogative Writs

Common law system  have prerogative writs, meaning order of the court which has to be obeyed. Like Habeus Corpus, Writ of Mandamus etc.

Establishment of Institution

Common law system lead to establishment of systems like Trusts, Tort law etc. This institution are unique feature of common law system.

Equity
"Justice, Equity and Good Conscience", these are the deciding factors in cases where law is found rigid or don't deal with the subject. 

No substantive distinction between public and private law

This is another peculiar feature of common law system.

Adversarial system

The adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth and pass judgment accordingly.


Other features
Not written much
Judicial review 










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