Comparative Law Power Point

COMPARATIVE LAW
1
INTRODUCTION
Comparative law is not a law in itself but a
way or a comparative approach to the study of
laws of different countries.
Comparison of different legal systems does not
constitute a new branch/subject of law
But when we say comparative law we just
mean comparing legal systems to bring out
similarities and differences among them .
Of course if you understand well this, there is
no comparative law, but a comparative study of
the
Augustin MUHIRWA, COMPARATIVE LAW,
2 Faculty of Law, ULK/Kigali Campus 03/04/2021
Cont’d
different systems of law. It is completely a
scientific step.
 Who can outline examples of some branch and
subjects of law…
Not like those branches of law, it is a process of
study of the differences and similarities in the legal
systems of foreign laws in comparison with local
laws.
Therefore, it helps in establishing harmonious
relations with other countries.
Cont’d
Sometimes through comparison, it is
revealed that legal systems oppose each
other by their substantive law, sometimes
by the spirit in which these rules are
conceived, or by the way these rules are
born.
Origin: The discipline is as old as the law
itself. Starting from the antiquity people
stated to understand laws of different
4
empires
Augustin (Greeks),
MUHIRWA, COMPARATIVE LAW, 6
th
century BC laws of
03/04/2021
Faculty of Law, ULK/Kigali Campus
Athens by Solon.
Cont’d
The Law of 12 Tables in the middle of the
5th century BC was written. The Treaty of
Aristotle comparison of the 158
constitutions of the Greek and barbaric cities
to which the great philosopher was
interested.
In the Middle ages, discussions at the
Sorbonne to compare Roman law and canon
law. In England, canon law and common; in
5
Germany,
Augustin customs
MUHIRWA, COMPARATIVE LAW, were compared.
03/04/2021
Cont’d
Comparison of different political regimes to
identify principles of the good system of
government by MONTESQUIEU was done.
This is where the famous principle of the
separation of powers was born.
However, it was only in the 19th century that
the importance of comparative law has been
discovered and began to develop as an
academic discipline.
Expansion of different relations in the
6 international
Faculty arena.
of Law, ULK/Kigali Campus 03/04/2021
Cont’d
The Society of Comparative Legislation was
created in 1869 and the first international congress
of Comparative Law met in 1900.

Objectives of Comparative Law
Development
 and change of legislation of each
country.
Intellectual: to access to a complex world in change

Sociological need: Education for understanding the

ways of life and relations among individuals
Socio legal need : comparison to improve own legal

laws
Political and commercial need: developing

international agreements on the common and shared
bases

Cont’d
Needs of comprehension: improve the
national law and understand foreign laws
and give a better regime to international
relations.
To understand regional and the African
legal system in particular.

The best knowledge and improvement of
the national law
It improves our understanding of our own
legal system
Practical application: It helps drafting of own
legislation or to better reform them.
 For business law, it might also help to decide
which country’s law is applicable to a contract
with an international element or in the case of
investors which country has a more favorable
tax regime, labor law, investment law etc.
The International Comprehension
Public International Law: It is useful for the
comprehension of foreign peoples for better
regime to international relations. Treaties
negotiators must understand the legal systems
of the concerned parties in order to convince
their interlocutors.
Private International Law: it is required to
assure the uniformity of the national solutions
of different countries. E.g One great success in
this respect was the 1980 UN Convention on
11 Contracts
Faculty for
of Law, ULK/Kigali the International Sale of Goods
Campus 03/04/2021
GENERAL CONSIDERATIONS
‘Comparative law’ is the comparison of the
different legal systems of the world.
Comparative lawyers compare the legal
systems of different nations. Not
comparison of different rules of single
system.
This can be done on a large or a smaller
scale. To compare the spirit and style of
different legal systems, the methods of
12
thought
Augustin and procedures
MUHIRWA, COMPARATIVE LAW, they use,03/04/2021
is
sometimes called macrocomparison.
Cont’d
Microcomparison, by contrast, has to do with specific
legal institutions or problems, that is, with the rules
used to solve actual problems or particular conflicts of
interests. When is a manufacturer liable for the harm
caused to a consumer by defective goods…..
What is comparative law and what comparative law is
not
Even if comparative law has much to do with foreign
law it must not be confused with other field like Int’
law.

Comparative law and neighbouring
areas
Private International law: Two areas
interact but they are distinct. As we said,
comparative law is a pure science whereas
int’ private law is part of positive law
applied in a particular case which has
foreign elements: eg contacts, marriage,
tort….
 Public International law: It supranational
and global; system of law whereas CL helps
14
to MUHIRWA,
Augustin understand COMPARATIVE the
LAW,general principles of law
03/04/2021
which are sources of public international
Cont’d
(I) (c) of the Statute of the International
Court of Justice. comparative law can also
be extremely useful in interpreting treaties,
and in helping to understand some of the
concepts and institutions of customary
international law, pacta sunt servanda,
clausula rebus sic stantibus…
Comparative Law vs. Legal history, and
Ethnology: the relations among CL and legal
15
history
Augustin isCOMPARATIVE
MUHIRWA, complex LAW,
03/04/2021
Cont’d
CL analyses legal system coexistent
whereas legal history Look at systems
consecutive in time. But all legal history
uses the comparative method and an
expanded notion of comparative law would
include comparative legal history.
Concerning legal ethnology, it is now seen
not as a constituent of a general history but
more as a branch comparative law which
16
concentrates
Augustin MUHIRWA, COMPARATIVE onLAW, the legal aspects03/04/2021
of
primitive. Its is historical only
Cont’d
in seeking to discover the origins and early stages
of law in relation to particular cultural
phenomena.
Comparative Law and Sociology: The two
disciplines have a lot to learn from each other but
also use much the same methods.
Sociology of law aims to discover the causal
relationships between law and society (how the
law affects human behavior and how the law is
affected by social change).
Cont’d
comparative law is the study of differences
and similarities between the law of different
countries

The purpose and the importance of
comparative law
It has an educational function:Comparative
law is an academic study of separate legal
systems, how and why certain legal systems
are different. Several disciplines have been
developed as separate branches of
comparative law, including comparative
constitutional law, comparative civil law,
comparative criminal law….
The principal purposes of comparative law
19
are:MUHIRWA,
Augustin deeper knowledge
COMPARATIVE LAW, of the legal systems;
03/04/2021
to perfect
Cont’d
the national legal systems, it help drafting
of legislation and possibly, to contribute to a
unification of legal systems

Classifications of legal systems
Many researchers tried to classify legal
systems or families based on different
criteria.
 Arminjon, Nolde, and Wolff: they
classified legal systems into groups
irrespectively of external factors: French
group, German group, Scandinavian group,
English group, Russian group, Islamic
group, Hindu group.
21
 David
Augustin MUHIRWA,proposed the classification according
COMPARATIVE LAW,
03/04/2021
Cont’d
Western Laws, a group subdivided into the:
-Romano-Germanic subgroup (formulated
according to Roman Law) and Anglo-
Saxon subgroup (law was created from the
judges). According to him the difference btn
the two is technical than idelogical nature
- Soviet Law - Hindu Law
- Muslim Law - Chinese Law

Cont’d
Difference between the Western legal
family from the other four are liberal
democracy, capitalist economy, and
Christian religion
Zweigert and Kötz: according to them 5
criteria to consider: the historical
background, the characteristic way of
thought, the different institutions, the
recognized sources of law, and the dominant
23
ideology.
03/04/2021
Cont’d
 Common law family
 Nordic family
 Family of the laws of the Far East (China & Japan)
 Religious family (Muslim and Hindu law)

THE ROMANO – GERMANIC FAMILY
The Romano-Germanic law is very
important among various legal families
classification of contemporary laws because
it contains laws belonging to States located
to all continents.
The expression "Romano-Germanic"
reflects dual influence of Roman law and
Germanic customs. This system is a direct
heir of roman law starting from the Empire
25
at time
Augustin ofCOMPARATIVE
MUHIRWA, Augustus LAW,
03/04/2021
Cont’d
Second World War. Formerly, comparison
was focused on differences that opposed the
Laws of the European continent, forgot to
see what made them closer by opposition to
the common law.
It was affecting many of the legal systems
of the western world, and from the western
world these legal systems spread to other
parts of the world like Africa and Latin
26
America
Augustin via colonization.
MUHIRWA, COMPARATIVE LAW,
03/04/2021
Historic formation of the Romano-
Germanic system
I. Customary law: Romano-Germanic
system appeared in Europe in the 13 th
century with the rise of the university
studies of the Roman.
Before this period, there was a mixed
Roman law with the Barbarians’ customs;
i.e. those of the Germanic tribes.
Roman law imposed itself in two stages:
military conquests of Rome and the Roman
27 Empire
Augustin was
MUHIRWA, COMPARATIVE
organized,
LAW, Roman law03/04/2021
got
Cont’d
A new approach to laws in Roman empire
was introduced where laws would be passed
and written down so that all citizens might
be treated equally before them.
The oldest text in roman law is the Law of
12 tables.
The teaching of the Roman law in European
universities has been started by different
methods or schools.
A. The glossators
They have attempted to find and explain the
original meaning of the Roman laws.
However, some of many Roman laws have
been neglected because, either they
concerned disappeared institutions like
slavery or they are replaced by the rules of
canon law like those concerning marriage.
After reading and explaining the text of
Roman law, the lecturer summarized his
29 interpretation
Augustin MUHIRWA, COMPARATIVE in
LAW,
03/04/2021
Cont’d
a very brief formula called (a gloss).
This gloss was noted by students in the
margin or between the lines of their text,
specifying the name of the one who had
stated it.
Glossators were followed by post glossators
who have tried to modernise the teaching of
the Roman law.

The post glossators
They modernized Roman law teachings.
They methodically arranged in grouped,
rules presented without a systemic spirit in
Roman compilations.
The archaic rules have been eliminated and
by different techniques, the Roman law has
been adapted to ideas and needs of the
society by taking into consideration local
laws.
Cont’d
Slow by slow European law (jus commune)
was developed (frameworks, vocabulary, clear
methods to facilitate justice solutions research.
This jus commune detaches itself from roman
law and becomes a systematic law based on
reason with the intention of being universal.
The school of post-glossators has give rise to
the school of natural law.

The school of Natural law
This school had success in universities during17 and
18th centuries. The recognition of an individual to the
detriment of divine order. The law is rational and must
consider human being. Subjective law appeared.
School of natural law lawyers were interested to bring
out rules of universal justice unchangeable and
common to all time and all people.
Distinction btn private and public law at the first time.
The introduction of public law was innovation because
roman law ignored liberty and freedom of human
beings.
II. Legislative Law
Expansion of public law due to the school of
natural law. The law started to be interested to
the relations between governments and
governed which allowed the formation of
administrative law and constitutional law.
Another success of this school was
codification (order in customary rules,
elaboration of a written logical and articulated
corpus which attracted many countries).
Cont’d
The codification had the unfortunate
consequence of a decline of the lawyers on
their codes. As such juridical nationalism
was established. But on the other side,
development of international relations,
creation of Europe, multiple international
treaties and international organizations and
the globalization of the economy which
tended to diminish that legal nationalism.
The structure of different laws of the
Romano-Germanic family
The Romano-Germanic family unity holds on the
structure that is given to the law including the
manner how legal rules are expressed and classified.
It had the same concept & same vocabulary, this

allows lawyers to understand each other easily.
The way how the law is divided into branches is the
same, the category like civil law, administrative law,
labour law are similar, the notion of contract, crime,
courts jurisdiction, special courts are everywhere
Cont’d
Some particularities, differences are also
many like number and contents of codes
differ from one country to another. But there
are more common points than differences.
One of the main character of the system is
the division of public and private law. Public
law was new…
The law of obligations is also a fundamental
category to all the laws of the Romano-
37 Germanic
Augustin system.
LAW,
03/04/2021
Cont’d
Again, under this system the legal rule is
conceived under legislative and doctrinal aspect
contrary to common law where it is conceived
under jurisdictional aspect.
The legal rule is beyond the only practice and its
role of contention but it insures the social justice,
economic and moral order. It creates a society
which is different from that one of the past. It
must contribute to the progress, it must be
general.
Cont’d
On the other hand, the common law system
is very open than Romano-Germanic system
which is very closed. The judge creates new
rules by what we call PRECEDENT. The
decision of the judge contains
jurisprudential rule which must be followed
in the future in the same case.
In the Romano-Germanic family where
legal technique is characterized by the
39
interpretation,
Augustin MUHIRWA, COMPARATIVE the
LAW, legal rule is formed in
03/04/2021
more general manner
Cont’d
which gives to the judge a certain freedom
of interpretation. In this system judges can
also make rules but of secondary importance
and they must not be contrary to laws
because every thing must be governed by
the law,

The sources of law of the Romano-
Germanic system
Law is the product of human effort resulting from
mode of production which are legislative,
jurisprudence, doctrine and customs. The one who
controls production of law controls the law and
people are controlled.
We have many actors of production of law whose
interests are not necessarily identical: Legislation
is a product of socio-political power,
jurisprudential is from the judge, doctrine from
authors, and customary reflects people's behaviors.
Cont’d
Legislation is, in general, the main or even almost
alone source of law in Romano-Germanic system
because it is the family that groups countries of written
laws. Other sources are like secondary sources.
A. The Act/Bill of law or legislation
The best way to solve the legal issue for lawyers is
based on the legislation. This is a legal general term but
which is very important in the system of Romano-
Germanic. This written text is accompanied in
Romano-Germanic family by hierarchy of norms.

Cont’d
1. Constitutional rules: In this system, all
countries have constitutions or constitutional
written laws where a particular political
prestige is recognized. But not necessarily a
particular legal or superior value than
ordinary laws. In some countries that legal
superior value is concretized by the
constitutional institution of control.
The institution in charge of this control
43
varies
Augustin MUHIRWA,following
COMPARATIVE LAW, the country. In some
03/04/2021
countries any
Cont’d
Jurisdiction can do it in others there have
been created special jurisdictions that are
specific for such control.
2. treaties: some constitutions confirms that
treaties are superior to laws.
3. Code and laws: structured compilation,
systematical grouped legislation
4. regulations: from leaders not
parliament. Some are there to implement a
44 law
Faculty and
of Law, in this
ULK/Kigali Campus 03/04/2021
Cont’d
case are controlled by the judge of law and
other they don't implement a law are
controlled by administrative judge.
Interpretation of legal texts: in the
Romano-Germanic system every thing is
about the interpretation of legal texts, the
text has much importance
All depend on the psychology and the
logical thinking of the judge. The latter
45 refers
Augustin firstly
MUHIRWA, and
COMPARATIVE
LAW,
03/04/2021
Cont’d
carefully to the texts because this is an
easier and more logical way.
He may refer also to the intention of the
author of the text. He is not obliged to
follow the precedent decisions.
Interpretation of texts by the judges may be
done in two ways:
1. The judge can interpret without taking into
consideration historical origin of the text
Facultynor
46 of Law, ULK/Kigali Campus 03/04/2021
Cont’d
the intention of legislator but simply in good
manner and justice.
2. He may do it by taking into consideration
the intention of the legislator.
In the Romano-Germanic system, four
methods of interpretation are traditionally
recognized :
1. The literal method: drafting of the law;
2. The systematic method: the context of the
Facultylaw;
47 of Law, ULK/Kigali Campus 03/04/2021
Cont’d
1. The teleological method: the aim of the text or
the intention of the legislator;
2. The historic method: the preparatory works.

cont’d
As summary, in the Romano Germanic
System, the implementation of the law is
done by the experience by either according
to the judges, period and the branches of
law.
The analogy, contrario reasoning or
reasoning a fortiori are used. Very often the
judge first finds the fair solution, and then
seeks to justify it in law. It seems that in the
49
Romano
Augustin Germanic
MUHIRWA, COMPARATIVE LAW, System, the law 03/04/2021
is a
guide on when it is applicable for justice.
Cont’d
 In conclusion, beyond the differences, in
all the countries of the Romano Germanic
System, the law holds the legal order, and
that its absences are considered
insignificant. But in reality, other sources of
law play an important role.
B. The custom: two misconceptions to
avoid before our discussion on the custom:
- there is no society exclusively governed by
50 custom.
Augustin MUHIRWA,Even for
COMPARATIVE
the most primitive societies
LAW,
03/04/2021
Cont’d
simple one, there are always judges or wise
men, kind of jurisdiction based on
jurisprudence;
 custom is not a source of primitive, archaic
law, and the text writes the "nec plus ultra"
of legal progress.
So, custom is a rule which is not enacted in
the form of a command by the public
authority, but which comes from a general and
51 continuous
Augustin (repetition)
LAW, use and the belief in
03/04/2021
Cont’d
sanction for the violation of that practice
The custom has several characters. First, it is formed in
the continuous manner, because individuals adapt their
behavior in accordance of the transformations of the
social context.
Two, it is manifested in the behavior of individuals
(unintentional and not oral).
 three, the custom is local; it concerns only a relatively
small group of individuals.
It is transmitted to children, by the parents, the
neighbors… it is not taught..
Cont’d
Custom is accessory and secondary source
of law from written legal text. In the
Romano Germanic System, custom
completes and clarify legal text:
1. Custom secundum legem.
2. Custom praeter legem. there is hardly any
custom contra legem. Custom is a source of
law, because it can be useful to the lawyers,
because it can make justice possible.
Cont’d
C. The jurisprudence: has a triple function:
1.To apply laws and specify their scope of
application from different practices;
2. To remedy the gaps and obscurities of the laws;
3. To adapt the law to the society change and
evolution and fill the gap from new practices.
It is with the jurisprudence we discover the big
difference between Romano-Germanic legal
system and common law.
Cont’d
In common law, the jurisprudence is the main source
of law but in Romano-Germanic it is not.
 The creative role of jurisprudence is never openly
acknowledged in Romano-Germanic system. It is
always hidden behind the interpretation of the law.
However, this creative role of the judge is inevitable
in cases where the law has not provided for anything.
If the law is silent, the judge must still decide,
In this case he would act as legislator, taking
inspiration from tradition and jurisprudence
Cont’d
C.1 Jurisdictions in Romano-Germanic
system: judicial organization is hierarchical
from the base of in general two degrees of
jurisdiction to the top (supreme court).
C.2 Judges in Romano-Germanic system:
judges are lawyers and professional unless
some exceptions like Gacaca jurisdiction.
Are committed, are subject to security of
tenure.. in this case contrary to common law
56
judges
Augustin are
MUHIRWA, many.LAW,
COMPARATIVE
03/04/2021
Cont’d
Also public prosecution to defend the interest of
society was not in common for longtime
D. The doctrine: for long time, the doctrine has
been the fundamental source of law in the Romano-
Germanic system and in particular the universal
doctrine.
Doctrine is all the written works devoted to the law
Do you think that doctrine is still source of law as
long as it has been dominated by the written legal
text has dominated? Universities & practitioners.
Cont’d
But it has an academic impact but also it is
recognizes as a source of in many country
including Rwanda.
E. General principles of law: It fill in gaps and
failures of the law, and are related to the idea

of justice and equity.
Recourse to general principles of law is
expressly provided for in certain texts such as
civil codes.
COMMON LAW SYSTEM
The expression ‘common law’ can be used
to mean different things. Firstly, it denotes
the whole legal order of the United
Kingdom. Legal systems of countries that
are historical colonies of England are also
referred to as common law systems.
One distinguishing feature of these legal
systems is that they give particular
importance to judge-made law.
Cont’d
It is the second big legal family rooted from
centuries which is based on the judicial
precedent instead of statutory laws, appeal to
the jury in order to decide, the law applies to all
persons either physical or moral.
This legal system is known also as the judge-
made law.
because it is created by judges when deciding on
individual disputes or cases.
It is a product of the unwritten law created by
60
judges
Faculty (precedent).
of Law, ULK/Kigali Campus 03/04/2021
Cont’d
Engand lawyers define it as the common
sense of the community, crystallised and
formulated by our forefathers.
The system of jurisprudence that originated
in England and which was latter adopted in
other English-speaking countries, especially
those that were former British colonies
including Canada, U.S, Australia etc…
Common law with jurisprudential essence
61 and
Faculty of Law, ULK/Kigali Campus 03/04/2021
Cont’d
more flexible is opposed to the Romano-
Germanic System based on the rigid written
legal text.
Globalization is not just the opening of
markets only; it is also the competition of
the legal systems.
The use of the common law in international
contracts has become common like how
English has become the dominant language.
Cont’d
In the Romano Germanic System the
contracting parties trust the law and codes to
solve the problems that may arise from the
execution, whereas in the common law, the
contract must itself provide for all the
difficulties that may arise.
It is not possible to discuss all laws of
common law but we will only discuss big
topics regarding English and American law.
Historical evolution of Common
law
Common law before 19th century: the birth
of common law has started before 19th
century.
It was applicable to the entire territory of
England contrary to local customs executed
by their local courts.
It’s against these courts that common law
will develop to become England law of royal
courts of justice.
Cont’d
Common law vis-à-vis Equity: due to its
procedural formalities royal courts could not
develop and adapt common law.
Litigants were not admitted before these
royal courts submitted their cases to the king
whom acted through court of Chancery.
This court could not create new rules but
justice through fair and moral decisions.
These decisions did not amend common law
65
butMUHIRWA,
Augustin supplement
COMPARATIVEit
LAW,
03/04/2021
Cont’d
So, from the beginning Equity was
suppletive law.
During 15th and 16th centuries some
autonomous, simple and modern rules have
been developed. Those rules obeyed written
law, written and inquisitorial procedure
etc…contrary to the common law whose
procedures were oral and contradictory.
In 1616 the king Jacques gave out an order
66 to
Augustin the
Cont’d
development of the equity. The latter must
follow the law; rules of equity cannot be
against law. This resulted in two judicial
trial for litigants, one in court of common
law for damages and the send in court of
Chancery for an order or injunction for
execution.
The old common law jurisdictions and the
Court of Chancery were abolished and
67
replaced
Augustin by theLAW,Supreme Court of Justice
03/04/2021
authorized to apply
Cont’d
both the common law and equity.
Common law from 19th century:
important evolution due to the work of
legislator. The latter intervened in the
organizational structure of courts and
procedures.
The royal courts becomes the jurisdictions
of the common law and the procedures have
been simplified and modernised. Lawyers
68 concentrated
Augustin MUHIRWA, COMPARATIVE on
substantive law rather03/04/2021
LAW, than
Cont’d
The big important evolution was the effort of
the legislator to deal with substantive legal
issues to the level that a new source of law
appeared, (STATUTE LAW).
Written legal texts continued to increase
even if they remained to be a second source
of law.
According to our previous discussions, what
are sources of Common law?
The sources of the English Law
English law created by Royal Courts
(Common Law) and the Court of Chancery
(equity) is a jurisprudential law (case laws
or decisions of court).
The doctrine is not important in England.
There was no big impact of the legislator
through codification on the English.
We will therefore start the study of sources
of England law with jurisprudence.
Cont’d
A. Precedent or jurisprudence: As we
have seen, in Romano-Germanic family,
decisions of court have a secondary role.
The situation is very different in England
where the role of jurisprudence is not only
to apply the rules of law but also to create
them. How?
It is therefore logical that the case-law has
been given a much greater authority than
71 that
Augustin what
MUHIRWA, is given
COMPARATIVE
LAW, in the Romano-Germanic
03/04/2021
Cont’d
Precedent can be summarized in 3 points:
1. The rules of law laid down by the judges
must be respected: Similar facts. To escape
to precedent, a judge must prove that facts
of a case submitted to him are different
from the case previously judged.
2. In fact, all courts are bound by decisions
rendered previously by a hierarchically
superior court. Decisions of UK superior
72 courts:
Cont’d
supreme court, court of appeal (house of
Lords) and high court are binding.
For decisions of other courts are not
binding must convincing.
3. No court should overturn its own
precedents. However, Supreme court is not
bound by its own precedents. Court of appeal
is bound by its own precedents except 3
instances to depart its own precedents: 1. If
73 supreme
Augustin MUHIRWA, has had
COMPARATIVE
occasion
LAW, to 03/04/2021
Cont’d
decide over the similar case differently from
the court of appeal 2. Realizes that previous
case was made by per incuriam (in ignorance
or forgetfulness of the law) 3. Court of appeal
Realizes that it has contradictory decisions on
similar cases they can pick one or they can
ignore all of them and decide a new one
Unless the House of the Lords can do it in the
interest of justice in .
 B.MUHIRWA,
Augustin Act/bill of law:
COMPARATIVE LAW, It is the second source
of
Cont’d
law. Judge made law is primary source of law.
Law is what judge said it is. It has corrective role
it is not considered as normal way to express the
law. Of course the judge will apply it but it will
only accepted and incorporated until it is
interpreted by courts.
In case there statute, written law (statutes) is
superior to judge made law even in common law.
It must be applied by the court. When he decides
contrarily then it is ground of appeal.
Cont’d
So, references will be made to decisions
used bill of law instead of the bill itself.
Note that English law does not have a
written constitution. Also no official
journal/Gazettes in England but are grouped
Statutes of law reports.
C. The custom: it is 3rd source of English
law apart from case laws and bill of law. Its
importance is limited because when it is
Cont’d
recognised by the bill of law or decision of courts it
looses character of being custom to become
jurisprudence or bill of law.
Apart from commercial customs, custom must be
immemorial and undisputed.
C. The doctrine: contrary to the Romano-
Germanic, common law has not been not developed
by universities but rather practical facts. It is
jurisprudential law. So, doctrine is limited but all
books by judges influenced much the common law.
The judicial organization
Group assignment will explore this topic.
However, you have to know that judicial
system is divided into superior courts and
lower or senior and subordinate courts.
Superior cour:
1. Supreme court
2. Court of appeal
3. High court of justice
Lower courts
78
4. Crown
03/04/2021
Cont’d
1. County courts
2. Magistrate’ Courts etc…Justices of the
peace: in criminal for small crimes. Local
no lawyer, volunteer and gratuitous
3. Les Stipendiary magistrates: Indictable
offences, professionals …
Prosecution in Romano and Common law
discussion by the group.

American law
England law has created the common law, but
later it expended overseas. This expansion
took into consideration particularities like
population, geography, religion
The United States, historically, is the first
great state to have adopted the common law
system invented by the English Royal Courts.
We will only discuss some big characteristics
of American law.
Historic background
US has been colonized by England. The
first English colonial institutions installed in
the United States in the 15th century.
Obviously, it is clear that all English laws
then are immediately applicable in US. But
it is still necessary that the rules of the
common law are appropriate to the
conditions of local life in US. This will
allow the common law to adapt itself in
81
America,
Augustin and LAW,
MUHIRWA, COMPARATIVE develop original elements
03/04/2021
different from the English common law.
Cont’d
In fact problems that arise in colonies are very
different from those of the British kingdom.
In 18 century, there was development of common
law due to changes from wild colonization to
civilized colonization, US independence,
inspiration of natural school.
 A big competition between Romano Germanic
and common law in 19th century. Common law
was successful due to the influence of the
language.
Cont’d
There is also some differences for many
factors like England is an island but the US
is a continent, a new country with
population from all over the world. England
is a single state, US is federal country.
Model life, Culture, language are not the
same.
Therefore, this resulted in two laws
belonging to the same legal family with
83
significant
Augustin MUHIRWA, COMPARATIVE differences
LAW, including 03/04/2021
their
structures, concepts. US has constitution
Structure of law of US
There are many identical big points in US as
well as in the England, Common law equity..
each State in US uses common law.
The law in US, is like in England,
jurisprudential.
However, it is a complex law. We will only
highlight differences in US as well as
England, countries belonging to the same
legal system, common law.
Particularities of the US system
Federalism: determines at the same the
public powers organization and the law.
Organization of powers: At local level:
states are organized as Federal State. Each
state has constitution and supreme court.
Executive power belongs to the governor.
s/he has all powers on the laws
At administrative level, states are divided
into counties, cities governed by the mayor
85 and
Augustin city
Cont’d
council, townships. All these local
institutions are governed autonomously like
in England.
At the level of federal State: adoption of the
constitution on the center of legal system of
all States with 3 powers. Legislative power
entrusted to Congress (chamber of
Representatives and Senate), Executive to
the US President.
86
 Law:
Augustin MUHIRWA,There
COMPARATIVEis no federal law in England.
LAW,
03/04/2021
Cont’d
In United States, the substance of the law is
a body of unwritten rules. These are those
recognized by the Courts of Justice and the
principles that emerge from the case law.
That's the common law.
Legislative competence is given to the
States, federal competence as exception.
At the beginning there was with 13
colonies, different from each other.
87 Economies
Augustin MUHIRWA, COMPARATIVEand
religion are different
LAW, as
03/04/2021
Cont’d
There are many local public powers that
produce legal rules called resolutions but act
or bill of laws voted by parliaments are
called statutes. Laws of federated States are
very similar.
Apart from federalism, there are of
course some other differences between US
and England law: constitutional law at
federal level as well as at States level. Some
88
branches
Augustin of lawLAW,very different like labour
03/04/2021
law, company law, banking law etc.
Cont’d
Attorney General in the US is the real
minister of justice but in the UK Attorney
General is just a civil servant employed by
the Government.
Sources of the US law: studying sources of
law will help to discover that England and
American law belong to the same legal
family but with the existence of many
differences that bring together more
89
American
Augustin law toLAW,
MUHIRWA, COMPARATIVE Romano Germanic system.
03/04/2021
Cont’d
These differences are manifested in
jurisprudence and legislation. Law of the US
as well as in England is jurisprudential law
but with recent development tend to
understand the importance legislation.
1. The jurisprudence: as far as judicial
organization is concerned, there are two
judicial degrees in US: A federal one and
one for each State.
Cont’d
Contrary other feral countries, where
federal jurisdictions are found at the top, the
US has an original system where you will
find federal jurisdictions in all federated
States and in some cases are seized at the
first instance. They are not divided
according to the domain of law, civil,
administrative or criminal cases are decided
by the same courts. Judicial organization is
placed
Augustin MUHIRWA,under
COMPARATIVE department
LAW, of justice with 2
91 03/04/2021
units: FBI and Immigration & Naturalisation
Federal jurisdictions
There are many and created by the Congress:
either on the side of legislative power, those
courts are under supreme court and are
considered as legislative courts with special
competences or on the side of judicial federal
power with general competence (district courts,
courts of appeal.
Then US has a supreme court mentioned in the
constitution but others courts are created by laws

Cont’d
There are special federal courts:
1. US Court of federal Claims: the
responsibility of the Federal State.
2. US Tax Court: fiscal court for fraudulent
taxpayers in property tax and income tax.
3. U.S Court of International Trade:
international commercial claims
4. Custom court: customs duties.

The jury
Every citizens can ask to be judged by the
jury if the case is beyond 20$ or if the
sentence is above 6 months.
There is a jury in civil matters as well as in
criminal matters. The composition is done in
two steps:
1. Venire: selected from community using
random method.
2. Selection : with some exceptions.
Cont’d
The relationship between federal courts and
courts of States is clear. Federal courts are
competent on the issues well specified by
the constitution like:
1. Nature of the issue: interpretation of
constitution or federal law
2. Litigants: federal court intervene if federal
state is involved, foreign diplomatic, two
parties from two different countries or if at
95 least
Augustin MUHIRWA,10,000$
COMPARATIVE LAW,
American precedent (stare decisis)
In US, legal rule of stare decisis has
significant limitation, judges can easily
change the case law. Especially the supreme
court. The reason is that federal system
make its application very difficult. There
also a big number of precedents many of
which are contradictory.
2. Statute law: two categories of laws exist:
federal laws and state laws. Among federal
96
laws
Augustin a COMPARATIVE
MUHIRWA, special LAW, place is reserved for03/04/2021
the
Constitution
Cont’d
which is the political charter and an act of
foundation of the United States of America.
The legislator and courts has to respect the
constitution, the control of which is done by
the supreme court.
All laws passed by Congress, and published
in the Federal Register, are collected in the
United States Code (U.S.C.).

Cont’d
Federal laws and state laws use or refer to
common law terms or concepts.
In short, the existence of a written
declaration of law in the US constitutes a
point of difference with UK.
Constitutional law of these two countries
are also different to the control of the
constitutionality of laws.

Specificity of the US criminal trial
The criminal trial and the criminal
procedure in the United States of America
has a special character that differentiate it
from Romano-Germanic law.
The accused can agree with the prosecution.
Such an agreement can be reached verbally
or in writing between the defense and the
prosecution at the end of which the accused
receives promises from the prosecution in
99
charge
Augustin ofCOMPARATIVE
MUHIRWA, his conviction.
LAW,
03/04/2021
Cont’d
The judge is not bound to respect the
conventions of the parties to the trial. Note
that in US criminal law, the victim plays no
role throughout the proceedings ( he cannot
initiate the procedure nor be a civil party in
a criminal trial).

Religious law
The 3rd big legal system, it is the law based
on human belief, religious law. We will only
take example of Muslim law.
Muslim law
The origins: It governs followers of the
Muslim religion. Muslim comes from the
word Islam which means submission to
God. As such, Muslim law is not, like
English law or American law, a branch of
101 the
Augustin social
MUHIRWA, sciences.
COMPARATIVE
LAW, It is rather one of03/04/2021
the
Cont’d
It has two parts:
1. AQUIDA: theology which sets the
doctrines and specifies what the Muslim must
believe, and
2. SHARIA: prescribes to the believers what
they must do or not in everyday life. Sharia
means "path to follow". it provides even
punishments.
Some Arab states, such as the United Arab
102 Emirates limit
Campus the application of Sharia
Faculty of Law, ULK/Kigali to
03/04/2021
Cont’d
Muslim doctrine is very simple. Believe in
Allah, his angels and his prophets, the end
of the world and predestination. Muhammad
is a prophet. Before him came other
prophets: Adam, Noah, Abraham, Moses,
David and Jesus. There is one God, no
trinity of Christians,
As in the Christian religion, there is a hell
and a paradise. For Muslim to worship
103
(Ibadat),
Augustin 5 pillarsLAW,(Arkan) must be followed:
03/04/2021
Cont’d
a) Shahada: witness the unity of Allah and the
prophecy of Muhammad
b) prayer 5 times a day by turning to Mecca
(Salat); on Friday this prayer is made at the
mosque, under the direction of the imam (the
one who is in front);
c) Ramadan: fasting and sexual abstinence
from sunrise to sunset,
d) to perform, during 3 days, the obligatory
104 journey (Hajj) to Mecca, at least once in
Faculty of Law, ULK/Kigali Campus his
03/04/2021
Cont’d
and to make the tour of the Kaaba 7 times.
e) pay Zakat equal to one-tenth of the income. It is
a manifestation of solidarity that purifies.
Indeed, these 5 obligations are fundamental. The
duty to make holy war (Jihad), which is a religious
form of propaganda, would be, according to some
theologians, a sixth pillar of Islam.
• Muslim law was not built on the sole scriptures of
the Koran and the Sunna.

Cont’d
But also other huge doctrine has been
elaborated over time by the legal
theologians so that followers of the other
religions, living in Islamic country, are
subject to the rules of the Dhimma.
Islam is at beginning like Judaism, a
religion of divine law. Muslim law is a
system of duties including customary, moral
and legal obligations, placed on the same
106
level, all subject to the authority of the 03/04/2021
same
religious imperative.
Basis of Islamic law
Sources of Islamic law: they are divided into 2
parts: the original sources and Secondary sources.
Among the original sources we have Koran and
Sunna.
1. Koran: It is a holy/ sacred book (Kitab) divided
into sourates and verses. Only about 500 are of
direct legal utility, they are called legal verses. It
constitutes an inseparable set of principles of
faith and rules of social political life.

Cont’d
The legal verses are very insufficient to regulate
relations between Muslims, even if we will find
those which govern personal status, with civil,
constitutional and penal character, judicial
procedures, economies and finance and even
those relative to international.
The literal interpretation of the text, the
researching for the hidden meaning and The
interpretation in the light of reason and data of
science
Cont’d
2. The Sunna
It outline the way of being and behaving of
the prophet, a model that should serve to
guide the believers. It is constituted by the
set of Hadiths (speech), traditions relating to
the acts and words of Muhammad
The Sunna serves to fill the gaps of the
Quran. It is of great value because the life of
the prophet can educate. Only authentic can
109 be
Augustin used
MUHIRWA, to develop
COMPARATIVE
LAW, the rules of law.
03/04/2021
Cont’d
Secondary sources we have the Idjima and Qiyas.
1. Idjima: it corresponds to the unanimous
agreement of the doctors of the law even if is
refused by some Shiites and is based on the
hadith that the prophet would have said
It is used to deepen and develop the legal
interpretation of scriptural sources.
Qiyas: it is reasoning by analog, which allows to
combine divine revelation and human reasoning.

Comparison of Muslim Law and Canon Law
Similarity: Both are community of believers.
Differences: Islamic law concerns every details
of live, and none is competent to modify it
(what to ear or drink, cloths etc. No difference
between the law and morality. Canon law is not
concerned with the organization of the society.
The canonic law have never tried to replace
roman law. It can be changed to adapt it as long
as it respect the doctrine.

Contents of Muslim law
It doesn’t distinguish between private and
public, no real constitutional law because it
is divine law no human imagination should
be included. The Koran is silent on the
justice, there was arbitrators. It is Sunna that
complemented all regarding justice.
Criminal law: like other laws, Islamic law
recognizes crimes and punishments. But of
course some concepts are ignored like
112
mitigating
03/04/2021
Cont’d
circumstances, attempted offenses,
prescroption. However, it distinguishes 3 types
of offenses like our system but with different
criteria crime against the society, crime
against the human being and against God.
Family law: all aspects of family law are
covered, personnes(Slave and free person,
woman and man, islam and non islam)
mariage (conditions) filiation, divorce etc..
Part II: Introduction to African legal
system
We have already discussed the major world
legal systems that exist namely the
Romano-Germanic Law System, the
Common law and Muslim law.
 This part deals with the African Legal
Systems. It is not another legal system but
in another words, we will discuss African
traditional legal systems, influences that
they have undergone from outside before,
114
during
Augustin and
MUHIRWA, after LAW,
COMPARATIVE colonization. 03/04/2021
Cont’d
past and now they have undergone a strong external
influence.
Customary law and traditions: Africa had its
own traditions and customs for regulating the life of
African families including the importance of the
name, arbitration etc..
The notion of the society and State even though
various structures were there.
Father’s authority in the administration of the
common property.
Cont’d
Father’s competence to render justice and
family council.
At the level of the village, we will find a
chief of the village.
By African customary law, we mean the law
applied in African before external
influences.
One of the feature of African customary law
is to be oral. It is the common and relevant
116 character
Faculty ofCampus
of Law, ULK/Kigali African customary law.
03/04/2021
Cont’d
Being oral has effect of considering African
customary law as a simple customs and not
rule of law.
Which may even mean that African law does
not exist. Apart from custom, Africans
acknowledged other sources of law like
jurisprudence. What are they and how?
Lack of professionalism of the law mixing
the law with the global culture.
Cont’d
Even if African customary law shared the
same character of being oral, their contents
extremely vary from an area to another.
Which justifies that it is wrong to consider
that there is a “African Law”; should this
implies unity of the content of the rule of
law applied all over Africa.

IMPORTED FOREIGN
The influence of foreign law started before
even the colonization especially religious
law like Muslim Law, the Coptic Law and
The Romano-Dutch Law which resulted the
commercial expansion and The American
Law which also introduced the notion of the
constitution.
With the colonial influences, european laws
becoming implanted on the African
119
continent
03/04/2021
Cont’d
countries accepted colonial laws either Entirely
or with some changes.
Is there an importance of foreign laws in Africa?
What are challenges of them to the Africa?
 Commercial expansion. Real legal systems
Introduction of the constitution in Africa,
Teachings of law and African jurists etc.
Loss of some African customs, values, originality
etc…

Particularities of Rwandan law
Like any other country, Rwanda has constitution.
However, the particularity for Rwanda is the role
of the Constitution in the management of
consequences of the Rwandan Genocide of 1994.
Gacaca jurisdiction as justice means to manage
the consequences of genocide.
 Another particularity in Rwandan legal system
is found in the judicial structure with regards to
the Abunzi Committee


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COMPARATIVE LAW

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

It had the same concept & same vocabulary, this

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

failures of the law, and are related to the idea

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

Augustin MUHIRWA, COMPARATIVE LAW,

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