Topic 1 and 2: Concept of Legal System

Question 1

What is Merryman’s definition of a legal system?

Answer 1

An operating set of legal institutions, procedures and rules.

Question 2

What is Merryman’s definition of a legal tradition?

Answer 2

A set of deeply rooted attitudes about the nature of law, the role of law in society and the polity, about the proper organisation and operation of a legal system, and about the way law is or should be made, applied, studied, perfected and taught.

The legal tradition relates the legal system to the culture of which it is a partial expression. It puts the legal system in cultural perspective.

Question 3

Is a legal tradition unique to the country it is found in?

Answer 3

No. The legal tradition is not attached to a nation. E.g. Singapore has a common law tradition, but we share this with UK, US, Australia etc.

Question 4

What is Friedman’s definition of a legal system?

Answer 4

A ‘machine’ consisting of inputs, outputs and a feedback loop.

Inputs:
A man filing a complaint and setting off a lawsuit
A policeman arrests a man
A landlord harasses a tenant

Processing:
Lawyers on both sides, judges, prepares their arguments, witnesses and evidence.
Judge hears case and deliberates.

Output:
The Court produces a judgement.
The Court produces or clarifies a general rule of law.
The result is in any event an output, even if the court refuses to hear the case

Feedback loop:
The impact of the decision or the rule set influences the behavior of other members of society.

Question 5

Give me an example of Friedman’s legal system in play, using a discrimination lawsuit on a school district as an example.

Answer 5

Input:
A civil rights organization brings a lawsuit on a school district for discrimination.

Processing:
Lawyers on both sides, judges, prepares their arguments, witnesses and evidence.
Judge hears case and deliberates.

Output:
The court produces a judgement for the plaintiff.
The court clarifies a rule pertaining to discrimination

Feedback loop:
Other persons or groups hear this case and bring similar discrimination lawsuits in their own districts.

Question 6

What did Friedman mean by the structure of the legal system? Give me some examples.

Answer 6

The institutional framework, body, or shape of the legal system.

For example:
The number of judges at each level
The hierarchy of courts
The roles of various legal officers
The jurisdiction of courts

Question 7

What did Friedman mean by the substance of the legal system? Give me some examples.

Answer 7

The substantive rules about how institutions should behave.

Primary rules are norms of behavior.

Secondary rules are norms about these norms.

Example:
Manufacturers must take proper care when manufacturing products for consumers.
However, this ‘duty of care’ cannot always exist because manufacturers should not have unlimited liability.

Question 8

What is Friedman’s definition of a legal culture?

Answer 8

The social forces in society that influence the shape of law.

The parts of culture - customs, opinions, ways of doing - that bend social forces toward or away from the law.

Question 9

According to Friedman, how does the simple case of a woman wanting a divorce show how the structure and substance of a legal system and legal culture interacts?

Answer 9

Structure:
Whether use of divorce depends on the procedural complexity of going through court.

Substance:
The use of divorce will depend on whether the current legal rules regarding divorce will help the person’s case

Legal culture:
Societal attitudes about whether a person who wants to get a divorce should go to court or find other ways of resolving the problem

Question 10

What are some examples of legal outputs according to Friedman’s legal system?

Answer 10

Passing a bill
Inspecting an elevator
Arresting a man
Paying compensation to a victim

Question 11

According to Friedman, what is the function of the legal system?

Answer 11

To distribute and maintain an allocation of values that society feels to be right.
According to Friedman, justice is when the allocation has been rightfully done.

Another secondary function is to settle disputes and conflicts, but the legal system has no monopoly on this since it belongs to other institutions as well (parents, churches, employers etc)

Question 12

What is Garro’s definition of a legal tradition?

Answer 12

Ways of thinking about the sources of law and

methods of handling those sources in the judicial process

Question 13

What is Garro’s definition of a legal culture?

Answer 13

Accepted notions about the role played by judges, lawyers and the rule of law

Question 14

What is Bell’s definition of a legal tradition?

Answer 14

A set of centuries-old passed down rules, such as the jury system,

That includes non-legal actors,
eg Writing of Iman affects Islamic law

And is shaped by social forces.

Question 15

Common law lawyers are impatient with theoretical arguments, because a precedent will likely determine the decision in a case. True or false?

Answer 15

True.

Readings:
“The common lawyer’s preoccupation with what the judges say, rather than what the codes declare, is a more pragmatic, less theoretical approach to legal problem-solving”

Question 16

The common law uses precedents because it is more concerned with constancy and predictability. True or false?

Answer 16

True.

Readings:
“The common law elevates the doctrine of precedent to a supreme position.. The justification is that it engenders constancy, predictability, and objectivity.”

Question 17

The common law is essentially remedy-based rather than rights based. While the civil law is the opposite. True or false?

Answer 17

True.

Question 18

The common law emphasizes on oral arguments, while the civil law emphasizes on written arguments. True or false?

Answer 18

True.

Readings:
“It illustrates also the importance of the oral tradition of common law as against the essential role of written argument employed by the civil law”

Question 19

Unlike common law systems, the civil law does not separate fact and law. True or false?

Answer 19

True.

Readings:
“This separation between facts and law was never adopted by civil law systems”

Question 20

Civil law is mainly concerned with the interpretation of texts. True or false?

Answer 20

True.

Readings:
“[T]he contradictions and complexity of the codes turned out to be an advantage, since the rules were… susceptible to interpretation and adaptation in order to suit the requirements of the time.”

Question 21

The appeal of civil law is that it is easy to read by a layman. True or false?

Answer 21

True.

Readings:
“A man need but open the book in order to inform himself what the aspect borne by the law bears to every imaginable act that can come within the possible sphere of human agency…”

Question 22

What is Bell’s definition of a legal culture?

Answer 22

The attitudes, behavior, and values of people that shape the legal system.

For example, Bell argues that Christianity has heavily influenced both the civil law and common law traditions. Also, Confucian values in Singapore may have influenced our defamation laws.