8 Dec 2007

Major legal systems of the world (Law Series - 3)



(Thanks wiki for such a well-researched diagram)
(click to enlarge)

I hope you have seen the movie 'Welcome to the jungle'. [If not, perhaps this trailer might help. See the part after 1.45 minutes]. It gives an amazing description of the rules that govern humans inhabiting the rain-forests. Not exactly, but yes, a fair description of tribal culture, where might is right and you got to have it in you, in order to survive. In early times, law used to be like that. It used to be governed by the ablest man's sword and whatever he said was the law. Thats the first legal system. Tribal laws. You might wonder whether it survives the scrutiny of modern times and advanced civilizations, but it still holds good. Be it Amazon's rain-forests or Andaman's tribal communities, these notions still continue. Perhaps an anthropologist might add more to that list.]

It is often said, common sense is not so common (so much so that I have even seen a book with that title, and ya, not read it). But such uncommon common sense is the common law. Confused? I will give you more reasons to be.

Ever met a reasonable man? Or a person whom you can call a perfect one ? [Hey, stop. I don't mean one perfect for a spouse] Perfect in the sense, one who would commit no mistakes, (not one who commits but is pardonable), one whose decision is perfect (not just for you but for all), one who knows everything and is wise, one who is strong but only to the extent an average man should be strong, one who is feeble but only to the extent an average man is feeble, one who is governed by human values but is not emotional, one who is smart but not smarter than an average man? Think you are really confused now by what I mean. But perhaps this is what I want.

I can quiet guess that your answer to the above is 'no'. Some might even to the extent of saying that there is no man on earth which fits the description. I quiet sympathize but sadly enough, there is one legal system on this planet which does not agree with you. It believes that such a man exists and exists in a big way. Such a big way that it is there at all times and at all places, one known as 'reasonable man'. This Mr. Reasonable has such a profound influence on this legal system that the entire system revolves around this Mr. Reasonable.

What would Mr. Reasonable do in this situation, what should have been the natural response of Mr. Reasonable, why should she/he not act like Mr. Reasonable in the situation? Does this sound familiar? Welcome to the 'common law system'. A system which believes the reasonable man is very common (and not so uncommon as per our understanding) and applies this test for all circumstances. All actions and inactions are judged from this reasonable man test to determine their compatibility with the law. This system is developed on the decision of the judges, which is known as 'common law'. The belief was that the judge had some divine connection with the Almighty that enabled him to lay down a rule (technically called 'precedent') which would be fit and apt for regulating human behaviour for all times to come, unless another divine logic comes to override the previous one. Now this has largely been taken over by legislature, which lays down the law and judge enunciates it. However, the judges continue to exercise this rule-laying down power and fill the gaps which the legislative law carries. Therefore, common law.

There is more to this though. The systems starts with law and then applies life-situations to it i.e. first comes the law and then whether the party to an incident acted in a manner consistent with the law laid down. This is the major reason which this system is stuffed with legal jargon, technical concepts (you already know one by now; the reasonable man, remember) and gives tremendous important and thrust to legal and logical reasoning (thought its really amazing that they do not collide most of the times) in solving life problems. [England, United States, India, Canada, Australia etc. are prominent countries following this common-law system.]

As opposed to this heavily-law biased system is another system where the factual aspects of the matter are more relevant rather than the technical enunciation of law; the 'civil law system'. It is easy to understand it as it is quiet the opposite of the civil law system. It starts with facts and then moulds the law to arrive at the correct decision. Here judge is not one wise man entrusted with a solemn duty to lay down a norm for social behaviour like in the common law system, but is in fact meant to resolve the dispute, termed as the 'inquisitorial' method of dispute resolution. The law here is a code, existing in advance and the judge is to resolve the dispute in accordance with the code. This is quiet distinct from the common law, where the judge generally adds to the existing body of law. [France, Germany, Denmark, Norway are some countries which follow this civil-law system]

Having read through the technical aspects and nuances of the these two major legal systems (I am sure you would be jittery and feeling heavy by now), I now take you to a simple and easily understood system. A legal system is dictated by religion and administered by religious priests. No wonder it is called 'Religious-law system' (though sometimes also termed as the 'Ecclesiastical System'. So what the religious texts, as interpreted by the clergy, say is the law that governs the people. Simple really, right? [Afghanistan, Iran, Saudi Arabia, Sudan are some countries which have adopted this legal system]

Then there remains just one more system to be understood; the 'customary system'. Though technically not a system in itself and just a principle of law (i.e. law develops from custom) it tends to be a system where habits and mannerisms of people force them to apply it as an obligation for all. This system is virtually a non-starter and not very prominent. Yet, wikipedia identifies atleast one country following this system.

Lastly, but not the least, don't be surprised to find a country the legal system which bears resemblance to more than one above. This is for the reason that countries keep experiencing and the judges tend to import concepts from other legal systems into their own. So we have various systems which reflect a culmination of the above principles. But in essence, they do tend to follow one system predominantly than the other.

Hope this was one interesting than the previous one (as I was told to do).

1 comment:

Sara said...

very interesting reading... the concepts are explained in very simple terms so taht even a complete novice like me can follow them easily... good work tarun!!