Classifications of Law - lec 2 Flashcards
Ways to classify law
National and international law
Types of legal systems (common law & civil law)
Private & public law
Criminal & civil law
Common law & equity
International law
‘Rules-based order’ in international relations.
It is a branch of the law that ‘governs the rights and responsibilities of States’ (towards each other, and other entities).
International law primarily relates:
Rights and duties of States (e.g. The Arbitral Tribunal determination between the Philippines and China).
- economy, military, trade, nuclear weapons, status, etc.
‘Facilitating’ interaction between States, such as showing them how to make binding treaties.
Increasingly, other entities (Greenpeace): international organisations liked the UN, international civil society, non-State armed groups; individuals and corporations.
Main sources of International law
- International conventions/Treaties - bilateral, multilateral (e.g. trade, human rights).
- Customary International Law (CIL) - law accepted by States through their consistent practice (STate Practice) - what States do.
- ‘General principles recognised by civilised nations’ - such as ‘good faith’ in entering into a Treay/Convention, binding themselves.
- Judicial decisions and writings of
‘the most qualified publicists (ie. scholars) - doesn’t count as a source of law itself, but can be evidence of a rule of international law in 1-3 above.
Private international law
(conflict of laws) - addresses questions of applicable law when there is a cross-national dimension - civil, commercial, family matter or between individuals/businesses.
Public International law
law governing the relations between States, through treaties, conventions and general principles.
This is usually what people mean when they say ‘international law’.
National law primarily:
Defines and enforces the legal rights and obligations of natural (human) and legal (corporate) persons;
Within a single ‘body politic’ (legal jurisdiction).
International law primarily:
Defines and enforces the legal rights and obligations of States.
Interacting with each other.
Families of Law/Legal Tradition: Common & Civil Law
Each country has its own legal system, but those systems fall into broad ‘families’ or ‘traditions’ of law. Most Western legal systems derive either from common law or civil law.
Other legal traditions may be based in religious law or customary law; in some countries, customary and/or religious law may exist alongside a Western-derived legal tradition.
Civil Law Tradition
Based in Roman law.
Secularised over the centuries and places more focus on individual freedom, promotes cooperation between human beings.
Describe the law that pertains to persons, things, and relationships that develop among them.
A comprehensive system of rules and principles usually arranged in codes and easily accessible to citizens and jurists.
A well organized system that favors cooperation, order, and predictability, based on a logical and dynamic taxonomy developed from Roman law and reflected in the structure of the codes.
An adaptable system, with civil codes avoiding excessive detail and containing general clauses that permit adaptation to change.
A primarily legislative system, yet leaving room for the judiciary to adjust rules to social change and new needs, by way of interpretation and creative jurisprudence.
Codes explain the principles of law, rights and entitlements, and how basic legal mechanisms work. The purpose of codification is to provide all citizens with manners and written collection of the laws which apply to them and which judges must follow.
Common Law Tradition
System includes, rules, values, principles, procedures, and institutions.
Common law developed in England.
Common law is distinct from the civil laws systems, which are derived from Roman law.
Main feature of the common law systems – judges’ decision in pending cases are informed by the decisions held in previous cases.
It is a body of law based on court decisions rather than codes/satutes.
Civil vs Common law systems
Main source of law in common law are judicial decisions; in civil law, it is legislation – civil law judges apply/interpret rules rather than creating them,
In common law systems, judicial decisions are binding on courts deciding later cases, which is not the case in the civil law.
Civil law countries have inquisitorial systems of justice, and common law countries have adversarial systems – in civil law litigation/prosecution, the judge runs the case, whereas in common law, the parties run the case (oversimplification, but broadly correct).
Varying role of the judge.
‘Common law judge looks at the past, civil law jurist looks at the future’.
How judges become judicial judges differs in the two systems, choosing one’s career path, and the manner in which one becomes a judge.
Argument about convergence, given increasing role of legislation in common law juridications, and decisions of top courts in civil law jurisdictions.
3 ways the term ‘common law’ may be used:
- Common law vs. Legislation - law made by courts (as opposed to that made by parliament). This meaning of common law can also be referred to as judge-made law, or case law (A source of law).
- Common law vs. Equity - in terms of the type of obligations/rights.
- Common vs. Civil law - as a type of legal system.
- Common law vs. Legislation
Here common law (law made by courts through their decisions) is distinguished from legislation (statues, regulations, local bylaws, etc.)
Generally, where legislation contradicts a court judgement, the legislation prevails - parliament may adopt legislations to reserve a judicial decision it considers wrong/out of date.
e.g. end of martial rape exemption in English.
Up until 1991, there common law didn’t require ‘consent’ by a wife, for sex with a husband.
This came to the fore in the 1980s in a number of cases.
For around 10 yrs, Courts were pleading with the Parliament to enact legislations.
Parliament didn’t; so then the House of Lords (now UK Supreme Court) finally overturned lower Court of Appeal decisions.
- Common law distinct from Equity
Equity supplements the common law, providing a separate and distinct body of principle that mitigates its rigours. The common law creates rights; equity relieves against strict insistence upon them, when such insistence is against conscience.
Filling the gaps of common law had regarding the ‘writ’ system.
Creating remedies of its own.
Eventually, equity became as fixed as common law.
Actions in common law (cause of action) commenced by writ; today summons or application.
If no writ was available – no cause of action, which left people without a remedy.
People without a remedy in law would make petitions to the Crown, specifically to the Lord Chancellor – from this process developed equity which exists alongside common law (e.g. in property law different people might have legal and equitable title to a piece of land – trust – proceeds of farming to a trust).
