Legal System presupposes the existence of laws, including the constitution, regulations, the instruments of their enforcement and the instruments for deciding whether or not in any given case the laws or regulations have been violated[1]. Briefly, one would argue that Legal System presupposes the existence of Law making body (the Legislature in any form be it Parliament, Congress or House of Representatives), the Executive and the Law Interpreter (the Judiciary)
Types of Legal Systems
The World does not posses a uniform type of legal system. Legal Systems differ from one country to the other, some countries follow religious form of a legal system like Islamic Law System to most of Arab Countries, African countries, before colonialism, based mainly on Customary Law System and these are still in application, with various amendments, todate in some countries like Tanzania. In most cases these laws do not stand as legal systems but rather as personal laws to settle mainly inheritance, succession and family disputes. There are many different legal systems of human civilization. But the most dominant legal traditions and systems in the modern world are Western. This is because over the last couple of centuries, West European countries invaded and dominated much of the world and continue to do so today through their economic and military superiority…Therefore there are variations, and between legal traditions. None of them is monolithic[2]. However, the most popular and applicable legal systems in the world are two i.e. Civil Law System and Common Law System, but the scholars have added another type called Socialist Legal System, which came at the triumph of socialism in several countries like the former USSR. Other legal systems, though not popular, include Islamic Law, Customary Law, and Hindu Law etc.
Civil Law System
This legal system is a result of joint efforts of Scholars from Universities of Latin and Germany between 12th and 13th Cs in Western Europe. Some Scholars, such as David and Brierly prefer to refer to this system as Romano-Germanic[3]. Thus, Civil Law System originated from continental Europe, and is principally centered there today even though because of European’s expansion through colonialism, many non-European countries have adopted it or borrowed certain elements. The Civil Law System was formed by the efforts of the European Universities which, from 12th C and on the basis of the compilations of Emperor Justinian (A.D. 483-565), evolved and developed a juridical science common to continental Europe. The compilations were known as the DIGEST. Prior to this time there existed various laws however they were not that much developed to acquire the status of a legal system, thus Justinian made extra ordinary efforts to give the existed laws the status of legal system, however, this was just a first phase.
The second phase came after the fall of Justinian Empire where by the DIGEST ceased to apply and primitive legal systems came to the replacement. These primitive legal systems based on either tribal or clan foundations.
The second phase in the growth of civil law system began with the renaissance of Roman law studies in the universities of Latin and Germanic countries during 12th C. For about five Centuries the system was dominated by the writings of jurists under whose influence legal practice itself in continental Europe evolved. The second way finally paved way to the third phase that came to be known as the Modern Phase in which the legal system, apart, from the dominance of the jurists writings is now dominated by legislation- written law.
Features of Civil Law System
- Initially, the task to determine and formulate the law was vested with the jurists/Legal scholars.
- It evolved as an essentially, private law. (Tailored to regulate private relationships between individual citizens)
- Court proceedings are based on Inquisitorial procedure. I.e. The judge has a much more central role in the process of not only judging but in inquiring, and setting the terms of inquiry, into the dispute.
Common Law System
The Common Law System operates in England and Wales. This is a legal system that bases on the doctrine of precedent where by law develops through the judges who seek principles and rules from previous decisions to decide the matters at hand. Therefore, the Common Law System does recognizes the laws made by the Judges while deciding cases through the principles and rules from previous decisions and this fact makes Common Law to be both the laws made by the law making body (Parliament) and the law interpreter. Thus, the question that “ Do Judges make laws?” receive the positive answer “YES” under the Common Law System, while to some other legal systems like civil law system the interpreter in this context the Judiciary is not allowed to make law. So, the most important thing to note here is that under common law system court decisions, though not all of them, are laws after the long time practice. It is to be understood that court decisions become laws when judges announce their decisions and give the reasons to their decisions, when cases of similar facts arise then judges would just decide to be guided by previous decisions. (formally this was taken to be persuasive in nature but after time, judges found themselves bound to decide cases of similar facts through the principle of analogy from previous decisions, this developed through the doctrine of binding precedent, stare decisis. This had one objective to make develop uniformity in cases of similar facts though judges do enjoy the right to decide cases by basing on their facts; each case has to be decided on its own merits), This is called in law decision-making by analogy, and this is what is called judicial precedent. Therefore, court decisions become law only when developed through judicial precedent.
Origin and growth of common law
The common law has its origin in Anglo-Saxon customary rules by judges after the Norman Conquest in 1066. Before the coming of William the Conqueror in 1066 there already existed a primitive legal system consisted mainly of customary rules and written laws which were codes of law compiled by Anglo-Saxon Kings. Geographically the whole country was divided into shires and each shire had its own court known as communal court. The courts used to administer the customary rules and the written laws that were compiled by the Anglo-Saxon kings. The shire court met periodically in the county town and was presided over by an official known as the sherrif, who was a representative of the king.
In 1066, King William of Normandy conquered England establishing feudalism and a strong government and legal system. At first, William and his co-Norman kings ruled the country by using the existing local courts and other institutions. But beginning the year 1096 William began sending administrative officers and royal officials throughout the country to discharge administrative and judicial functions. This system enabled William to control the country better because the royal officials sent or hear cases offered better methods of trial compared to the communal courts. In the long run the communal courts died a natural death.
Therefore it can be concluded with certainty that common law was formulated from the indigenous customs by royal itinerant judges who were sent out as representatives of the king, to administer justice throughout the realm which was then divided into circuits. In the course of discharging their functions the judges ascertained and applied the customs applicable in the locality. They discovered the customs with the help of a jury and then applied them. On completing their circuits the judges returned to the royal courts at Westminster. Here the judges would discuss the merits of various customs discovered, agreeing on certain customs and rejecting others. In this way local customs gained the force of general law since local customs formed the basis on which judges developed the common law. By about 1250 of those customs were sifted and unified into one system of law common to all people hence the term “common law”[4].
Features of the Common Law System
- Itinerant judges formed it.
- It bases on the doctrine of precedent.
- It is adversial in nature in which parties make their side of the case and the judge play an impartial role.
- It is mainly Public law since private matters were not much of concern to common law courts.
EQUITY
The English legal system is made up by common law and the well-known doctrine called the principle of Equity. This is a body of laws in contrast to the common law that developed in the 15th C. by the court of Chancery to remedy the inadequacies of the common law. Equity became a supplement to common law. It happened several times in England that people were not satisfied with the decisions announced by judges by basing on common law. People thought that in some instances common law was not doing them justice, people sought a mechanism of seeing the King by themselves and present their grievances for fair and just solutions. The King’s wisdom became another legal means in handling peoples’ disputes. Thus, since then Equity stands for natural justice and fairness. One should go to equity with clean hands.
Socialist Legal System
Socialist laws constitute the third category of world legal regimes. The system originated in the USSR. With the triumph of the Socialist Revolution USSR began to build new type of society. The society to be created is a communist one under the aegis of fraternity (brotherhood) where there will be no more state and no more law. In a communist society state will be made superfluous by a new feeling of social solidarity developed through the disappearance of the capitalist world’s antagonisms. In this communist society even the instruments of coercion will disappear and that social relations will be ruled primarily by communist morality. It can simply be argued that the Socialist Legal System targeted on building communism where by state and law would not find their way to survive in the societies, however, with the fall of USSR, it is doubtful if the remaining countries like Romania for example will be able to stand their goal of transforming their societies into communism.
Features of Socialist Legal System
- Revolutionary in nature.
- Disappearance of State and law.
- Private law narrows down at the expense of public law.
Conclusion
With the above lecture it is highly expected that students are now well equipped with what it means by the term Legal system. It is also certain that students are at this juncture able to explain different types of legal regimes that operate or were once upon a time in operation in the World. Finally, students should be well aware on how these legal systems were introduced in Africa particularly in Tanzania.
CITATIONS
