Legal systems

Part 1

Profusion and variety

Introduction

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. 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.'

Classification

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

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 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 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 case-law. 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.