Why Do Different Legal Systems Exist
The common law tradition is unique in England, the United States and the former colonies of the British Empire. While there are differences between common law systems (e.g., most countries do not allow their judicial systems to declare legislative acts unconstitutional; some countries use juries less often), all recognize the use of precedents in court cases, and none rely on the comprehensive law codes that prevail in civil law systems. In most nation-states, the basic entities that make up the international legal system. Countries, states and nations are all pretty much synonymous. State can also be used to refer to the basic units of the federal United States, such as in the United States of America, which is a nation-state. (as countries are called in international law), who has the power to make and enforce laws is a question of who has political power; In many places, individuals or groups who have military power may also have the political power to make and enforce laws. Revolutions are difficult and controversial, but every year there are revolts against the existing political-legal authority; The pursuit of democratic rule or greater „rights“ for citizens is a recurring theme in politics and law. A customary law system is a system based on long-standing traditions in a particular community. Traditions are so deeply rooted in society that the courts recognize them as enforceable rules. However, customary law is rarely interpreted and applied by the government.
Instead, the selected leaders of the group usually apply the laws of custom. As a result, customary laws are usually not written down and are only revealed to members of the group. Today, the common law is found in closed and isolated communities combined with common law or civil law systems, allowing them to coexist with systems of government in a hybrid system. Most systems accept that criminal responsibility is not attributable to specific groups of people: very young children or people with serious mental illness. The systems also recognize a number of mitigating circumstances such as self-defence or provocation. A hybrid legal system combines parts of more than one approach to create a system that is unique in the country. Many countries have mixed legal systems that include general, civil, religious, and customary systems.59 For example, the state of Louisiana has a hybrid system. Louisiana uses some common law, but it also uses a civil justice system for much of its state laws and procedures because of its origins as a French territory. Even on recognized tribal lands, customary tribal rights can be used instead of state or federal laws. Another example is the Philippine system, which, because of its history, includes French civil law, American-style customary law, Sharia law, and indigenous common law.60 Many African countries have a parallel tribal or ethnic legal system for ruling on family law issues.61 There are different schools (or philosophies) of what law is.
The philosophy of law is also called jurisprudenceThe philosophy of law. There are many philosophies of law, and therefore many different jurisprudential views, and the two main schools are legal positivism, a jurisprudence that focuses on the law as it is – the command of the sovereign. and natural lawA jurisprudence that emphasizes a law that goes beyond positive laws (human laws) and indicates a set of universally applicable principles. While there are others (see Section 1.2.3 „Other Schools of Legal Thought“), these two schools are the most influential in how people think about law. In some civil law systems, for example in Germany, the writings of jurists have a considerable influence on the courts; Most of what we discuss in this book is positive law – especially American positive law. We will also examine the laws and legal systems of other nations. But first, it will be useful to cover some basic concepts and distinctions. Whatever their origin, most legal systems agree on certain fundamental premises. First, no one can be guilty of a crime if the offence has not been previously defined as such and if the sentence has not been pronounced through a legal procedure. This implies the need to clarify criminal law, prohibit its retroactive effect and certain notions of „fair trial“ and the availability of a lawyer.
Second, no one can be prosecuted twice for the same thing. Third, it is a crime to attempt a crime or conspire with others to commit one. Fourth, an alleged criminal must have a certain mindset to be convicted of the crime. Whether the United States will remain a supporter of free trade and continue to participate as a leader in the WTO will ultimately depend on whether citizens elect leaders who support the process. For example, if Ross Perot had been elected in 1992, NAFTA would have been politically (and legally) dead during his mandate. The American legal system and other legal systems based on British rule are a common law system.44 Originally, the common law meant law made by judges that filled gaps where there was no written law. The judges looked at previous decisions to determine unwritten judicial law and apply it to new cases. Today, however, almost all laws are written and enacted by a legislator as laws.
Many statutes codify, amend or abolish the established common law, depending on the purpose of the statute. There are cases where an unwritten common law is still applied, but these are rare. Constitutions, laws, regulations, treaties and court decisions may provide a legal basis in positive law. You may believe that you have been wronged, but in order for you to have an enforceable right in court, you must have something in the positive law that you can indicate that supports a cause of action against the defendant you have chosen. The positive legal school of legal thought would recognize the command of the legislator as legitimate; Questions about the morality or immorality of the law would not be important. On the other hand, the natural law school of legal thought would refuse to recognize the legitimacy of laws that are not in conformity with natural, universal or divine law. If a legislature issued an order that violated natural law, a citizen would have a moral right to demonstrate civil disobedience. For example, by refusing to give up her seat to a white person, Rosa Parks believed she was refusing to obey an unjust law.
The right-wing realist school flourished in the 1920s and 1930s as a reaction to the historical school. Legal realists have pointed out that some laws and doctrines need to be changed or modernized to stay current, as life and society are constantly changing. The social context of the law was more important to legal realists than the formal application of precedents to current or future litigation. Instead of assuming that judges inevitably acted objectively by applying an existing rule to a set of facts, legal realists observed that judges had their own beliefs, operated in a social context, and made legal decisions based on their beliefs and social context. On the other hand, procedural laws are the rules of courts and administrative authorities. They tell us what to do if there is a fundamental problem.