chapter 2 Flashcards
macro comparison
the activity in which the main characteristics of legal systems are compared. it allows insight into how legal systems work and to what extent they are similar/different from one another. legal comparison is done at a macro level.
DESTEP analysis
methodological approach in an export-plan, where the P stands for political and legal aspects. it is useful to evaluate what country has the best legal climate to offer your products or services.
legal system
a coherent collective of legal rules in which the same hierarchy of legal sources applies, mostly determined by the boundaries of a state. it is not necessarily restricted to the boundaries of a state and also changes over time.
legal family
a group of legal systems that share the same basic characteristics in law, including at similar hierarchy of legal rules. the selection is based on the differences between the highest legal source of law, which usually defines the main characteristics of legal systems.
common law system
case law driven. the law is mostly developed by judges, rather than by legislators or academics. the draft of written standards is mostly a recognition or summary of permanent precedents in case law. case law is leading in the development of law and there is emphasis on the procedural matters of law. formal law plays an important role. it was first developed in England, and spread during the expansion of the British empire.
sollicitor
advises clients on legal matters in general, and represents them in the lower courts.
barrister
specialised in appeal cases or cases that are dealth with in the higher courts.
civil law system
driven by codified standards. a society can be organised in a coherent way by adopting written codified standards. thus, law emerges from these standards and is applied in court when necessary. the role of the court is to apply the spirit of the standards since a rule cannot be applicable in all future cases.
codification movement in the Roman Empire
idea to regulate private relations by written code. spread by the Romans in the major part of the European mainland and heavily influenced the civil law system.
French Revolution
played an important role in revisiting the law. the Revolution resulted in the French Civil Code, which became one of the most influential laws governing private relations in the world.
socialist system
driven by the administration. the law is produced by the state (the administration) on behalf of its citizens to create a society based on socialist principles. law is thus a tool to construct such a society. thus, the administration, through a political party, is the main source of law.
democratic centralism
when a country is governed by one powerful political party and this party has a monopoly on decision making.
religious system
driven by religious rules. thus, the legal system is non-secular. in some countries, religious law only plays a role in certain legal areas.
Shari’a law
reflects the will of Allah. the will of Allah is not restricted to particular topics and does Shari’a law applies to all aspects of life. also, the will of Allah is not flexible. so, the law does not necessarily change when society progresses. instead, a society should progress in accordance with Shari’a law.
traditional law system
driven by customary law. full traditional law systems hardly exist because civil and common law systems heavily influenced them. now mostly, traditional law is complementary to other legal systems. in some communities within states, it applied within indigenous communities.
mixed system
a mixture of legal approaches in one legal system. it may be influenced by several types of legal systems and may have embraced various such elements. this can usually be explained by historic events that caused influences.
micro comparison
the activity in which the legal solutions to a social problem in legal systems are compared.
tertium comparationis
the shared social problem to which the compared legal solutions answer. it is assumed that in each legal system, more or less the same kind of problems need to be tackled by law.
praesumptio similtudinis
the assumption that in essence each society faces the same social problems. in a majority of the legal systems, there will probably be some kind of legal solution to solve it. the researcher should find the legal solution to the shared problem in different legal systems.
legal solution to a social problem
the particular legal concept within a given legal system that solves the involved social problem. legal solutions may differ, but are equal in their functional relation.
Sunna
the writings that come forth from the interpretation of the Qu’ran given by the Prophet Muhammed. this includes different sources, depending on the exact type of Islam one professes.
hadiths
earliest books describing the life and deeds of Muhammad.
Igma
the interpretation to the Qu’ran as given by humans. this is when the Islamic world reaches a consensus on the interpretation of the Qu’ran.
qiyas
analogous application of the law. a Muslim Judge tries to find analogous cases in the past if the previous sources do not provide a clear solution.
fatwa
the individual opinion or decision of a judge or legal scholar. this might be necessary for qiyas.
