Topic 2 - Legal Systems and Classifications of Law
Content and structure vary between states.
Morality/needs of society
Differing standards of legality, eg chewing gum in Singapore
Restrictions on right to practice
Legal qualifications not generally transferable
Civil Law
Derived from Roman law
Europe
Exported
Dutch
South Africa
French
North America
Louisiana
Quebec
Only Civil law jurisdiction in Canada
Spanish /Portuguese
South America
Traditiolly taught in universities
Discovery of Corpus Juris at University of Bologna
Organised by lecturers to be systematicsystematic and comprehensive
Based on general principles
Rights and duties implied/derived
Deductive reasoning
Laws often set out in systematic codes
Inquisitorial
Judicial investigation of facts
Significant influence on Public International Law
EU based on civilian tradition.
Civil influence on UK
Common Law
Exported
Commonwealth
US
Adversarial
Parties responsible for putting forth facts and legal arguments
Detailed rules
Historically based on remedies
Emphasis on past decisons
Piecemeal
Stare decisis
Recording of judgements
Eventual deduction of principles from body of past cases
Inductive reasoning
Common factors identified
Taught via observation /apprenticeship
Difficulties in import and export of rules
Relationship between jurisdictions in same legal family
Comparative law
Desire to harmonise law across Europe
Possible to learn from other jurisdictions
Classification of Legal Systems
Legal Families
Religious
Islamic
Jewish
Based on religious text
Canon
Socialist
Scots Law
Drawn from civilian and common law traditions - mixed legal system.
Common law
Commercial law
Civil law
Delict
Roman law principle - defender must make reparation for the wrongful loss
Tort in England - made up of many individual causes of action.
Examples
Defamation
False imprisonment
Battery
Assault
Trespass
Land
Chattels
Person
Liability dependant on identifying correct tort.
Bringing case into the circumstances held to be necessary to establish tort.
Wrong choice, no remedy.
Cross fertilisation
Scottish influence eg negligence
Roman law
Law of persons
Law of property
Law of actions
Ius civile
Amongst citizens
Ius gentium
Foreigners
Ius naturale
Nature and morality
Classifications of Laws
Public
Examples
Criminal
Administrative
Constitutional
Revenue
Public International Law
Relationship between individuals and state
Private
Examples
Sucession and Trusts
Family
Company
Contract
Commercial
Property
Delict
Relationship between individuals
Court Processes
Civil
Disputes within private law
Pursuer and defender
Balance of probabilities
Finding of liability
Criminal
State taking action against individual
Crown office - procurators fiscal, Lord Advocate
Limited scope for private prosecution
Beyond reasonable doubt
Finding of guilt
Malum in se/Malum prohibitum
Administrative
Judicial review
Was process to arrive at decision lawful?
Tribunals
Lesser form of judicial decision making
Expertise
Informality
Cheaper
Speed
More inquisitorial approach
Public and private legal areas
Common Law
Type of Legal system, derived from English law
Case law
(England) law rather than Equity
Equity administered by Court of Chancery. Provision of discretionary equitable remedies where ordinary courts could not give a remedy
No counterpart in Scots law
However Court of Session's power of nobile officium
Civil Law
Legal system, derived from Roman law
Relating to private litigation or action
(Hisrorical) secular, as opposed to Canon or ecclesiastical law