UNIT 1

Major Legal Systems of the World

 Legal systems vary from country to country, and sometimes within a single country.
Although they develop in different ways, legal systems also have some similarities based on
historically accepted justice ideals.
 Legal systems do fall into groups or patterns with some similar features within each group.
Among the main groups that you might encounter are: 1) civil law; 2) common law; 3) family
of socialist law; and 4) other legal systems (specifically religious laws, situation in Far East
and Black Africa and Malagasy Republic.
 Many countries employ more than one of these systems at the same time to create a hybrid
system. In some places, the current security situation can also impact the way that legal
systems work.

1.) Romano-Germanic Family

 This group includes those countries in which legal science has developed on the basis of
Roman jus civile.
 Civil Law is codified. Countries with civil law systems have comprehensive, continuously
updated legal codes that specify all matters capable of being brought before a court, the
applicable procedure, and the appropriate punishment for each offense.
 The Legal System followed by the countries in the mainland of Western Europe.
 It focuses on the application of codes and not on the interpretation or creation of law,
therefore, it is sometimes referred to positive law (what ought to be).
 Here, legal system is seen as a normative system, creates a doctrine and applies it to
different circumstances.
 Following are few common characteristics:
- Most of the law is statutory law created by legislatures and not by judges following
precedent, only these legislative enactments are considered binding to all;
- Usually an inquisitorial system, where an investigating judge is actively involved in
investigating the facts of a case and seen as fact finders, deciding whether a party violated
any code or not;
- Prosecutors and defence attorneys may play a more limited role;
- Victims may be parties and have rights regarding their involvement, which may include
having their own attorneys and filing the initial charges;
- In civil law systems, victims have a more central role in criminal proceedings. The victim
often has the right to be represented by counsel who participates in the trial, including
asking questions and presenting evidence. Victims may bring civil claims, e.g., for monetary
damages, in the context of a criminal prosecution.
- Many European countries, including France and Germany, and a number of North, Central
and South American countries, like Mexico and Brazil, are examples of civil law systems.

2.) Common Law Family

 The origin of Common Law is believed to have been in England and so wherever the British
Empire spread its sovereignty, the Common Law System was imposed.
 The Common Law legal rule is one which seeks to provide the solution to a trial rather than
to formulate a general rule of conduct for the future.
  The doctrine of stare decisis obligates courts to look to precedent when making their
decisions, hence, adds to law by precedents i.e. legal principle created by a court decision
becomes an example or authority for judges deciding similar issues later on.
 Following are few common characteristics:
- The laws governing a case are based on both legal precedent, created by judges, and
statutory laws, created by legislatures;
- The court proceedings are focused on the adversarial nature, where the disputing parties
have engaged advocates who act like adversaries in the court of law and each advocate
fights tooth and nail against the other in order to win the case. The judge in the court acts
like a neutral observer listens patiently to the advocates of each party.
- A jury must aid the judge and its role is to decide the facts to determine whether the
accused person is proven guilty. The right to have a jury decide the facts may be contained
in a country’s Constitution or in a legislative law, and not all common law countries rely
upon juries. The country’s laws and type of court also dictate the number of jurors and how
many must agree on a verdict;
- There is an active role for prosecutor and defence attorneys. The prosecutor is responsible
for filing criminal charges against the perpetrator if there is sufficient evidence to proceed to
trial. The prosecutor has broad discretion as to whether to file charges, which charges to file,
and how to present the case. Defence attorneys can gather evidence independently, hire
expert witnesses, and select witnesses to call at trial. The right to cross-examine prosecution
witnesses constitutes an essential element of the rights of the accused.
- Victims have a role as witnesses and may have rights as a victim to receive information and
limited participation – however, victims are not a party in criminal cases;
- The U.S. and the U.K. are examples of common law systems.

3.) Family of Socialist Laws

 The family of Socialist Laws originated in the Union of Soviet Socialist Republics where there
ideas prevailed and a new law has developed since the 1917 Revolution.
 Their administration is the highest legal authority and predominantly decides how the law
should be created.
 Private Law such as personal laws and law of contract has no space and all law has to be in
the nature of ‘Public Law’ which means that all law deals with State matters or public
matters, such as Constitutional law, Administrative law etc.
 Socialist laws are revolutionary in nature, the proclaimed ambition of socialist jurists is to
overturn society and create the conditions of a new social order in which the very concepts
of state and law will disappear.
 Economic crisis-> immiseration of proletariats-> revolutionary class consciousness-> capture
of state power-> dictatorship of proletariats-> withering away of the state-> communism
emergence.
 Socialist jurists see the state as an apparatus of class domination it follows that the existence
of the state will come to an end simultaneously with the disappearance of classes, i.e., with
the introduction of a classless society in which all persons enjoyed the same position with
respects to the means of production, individuals were equal and interdependent on each
other because the means of production were free and at the disposal of all.
 Marx divides the society into have’s and have’s not, representing the economic unevenness
of the society. The time law and state were born by the ruling class to strengthen and
 perpetuate its domination. It can be defined as these series of social norms which regulate
the dominating relationship of the ruling class to oppressed class, in those areas of this
relationship which cannot be maintained without recourse to the oppression wielded by a
sense of social solidarity which will be a collective action, founded in shared beliefs and
values and in itself the state is the organisation of the ruling class which assures its
continued oppression of the oppressed class for the purpose of safeguarding the interests of
the ruling class.
 Law and state have not existed always, there will be dialectical leap in society, this transition
of society with time added changes which resulted from advances in the means of
production and left intact the characteristics of class based society rooted in private
ownership of the means of production. Whether the transition was from slavery to
feudalism to capitalism, the exploitation of subjugated class has been constant.
 The cycle of exploitation is never ending, society will continue to suffer from a fundamental
defect, those who exploit were once exploited and this vicious cycle of exploitation will
continue as long as the means of production has have’s and have’s not, therefore, means of
production must be made collectively owned.
 Engels used the expression “withering away of the state” to describe the disappearance of
the state. In doing this, he stressed the fact that the disappearance of the state will not be
an instantaneous event but a protracted process.
 In this communist society all forms of coercion will be needless and rule of conduct will be
same as in primitive societies where people were intact because of shared values, customs
and forms of habitual behaviours. The sole focus of these societies will public services such
as health, education, transportation, based on equality and economic and social liberty.
Society will no longer be democratic because it is not subjected to rule of anyone.
 Marxism creates the conditions of true freedom for man by teaching him, in the light of a
scientific theory what he should want.