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1 Legal Systems Around the World

1.1.1 Codified Civil Legal System

 Definition: A codified legal system is where all the laws of a country

are written down in a comprehensive code or codes.

 Structure: The code organizes laws by area (e.g., tax law) to avoid
inconsistencies and contains only legislative enactments.

 Judicial Application: Judges have minimal discretion in their

decision-making, required to strictly apply the code without reliance
on legal precedents.

 Predictability: The codified nature allows both citizens and lawyers

to predict legal outcomes early in legal proceedings.

 Geographical Prevalence: Predominantly found in European

countries like France, Germany, Holland, Spain, and Portugal, and
also in their former colonies across Central and Southern America.

 Legal Changes: Amending laws in a codified system typically

requires a large legislative majority, making laws more static and
prescriptive compared to those in common law systems.

 Judicial Framework: Countries with codified systems usually have a

written constitution and a constitutional court that interprets but does
not create new laws.

1.1.2 Common Law

 Origins: Emerged after the Norman Conquest in 1065, aiming to

centralize judicial authority under the monarchy.

 Development: Initially based on local customs and later standardized

by judges who traveled between regions, discussing and harmonizing
laws at Westminster, leading to a unified legal system.
  Current Application: Today, common law is unwritten, evolving from
customs and judicial decisions rather than statutes. For instance,
murder is treated as a common law crime, whereas theft is defined by
statute (e.g., Theft Act 1958).

 Judicial Flexibility: Judges in common law systems can create new

laws but are limited to ruling specifically on the cases before them,
affecting future cases without broad legislative changes.

1.1.3 Customary Law

 Nature: Derived from community practices that evolve into

recognized rules of behavior without deliberate legislative action.

 Historical Role: Significantly shaped the early development of

English common law.

 Contemporary Relevance: Today, customary law rarely leads to new

laws and is more of a historical source within the legal system.

 Legal Recognition: Modern courts infrequently establish new

customs as valid law, though there are exceptions where longstanding
customs have been recognized, such as in Egerton v Harding (1914).

1.1.4 Religious Law

 Basis: Originates from the sacred texts of a religion, covering areas

like personal behavior, family law, and contracts.

 Application: Often coexists with other legal systems (e.g., codified or

common law) and is particularly influential in regions where religion
deeply permeates social and political life.

 Examples: Sharia law in Islamic countries not only governs religious

practices but extends to crimes, politics, economics, and personal
conduct.
1.1.5 Mixed Legal Systems

 Characteristics: Incorporate elements from multiple legal traditions,

such as civil code and common law.

 Examples: Countries like South Africa and Cyprus exhibit mixed

systems due to their colonial histories, combining elements from their
European colonizers and subsequent British rule.

 Legal Complexity: The interplay between different legal systems

within one jurisdiction can lead to a rich yet complex legal landscape,
where private law may be dominated by civil code principles and
public law by common law practices.

1.2 Adversarial and Inquisitorial Systems

1.2.1 Adversarial System

 Usage and Jurisdiction: Common in countries with common law

systems where legal proceedings involve two opposing parties
represented by advocates.

 Courtroom Dynamics: Each party presents their case, including

evidence and witnesses, with the goal of proving their argument while
discrediting the opposition. The case is ultimately decided by an
impartial judge or jury based on the arguments and evidence
presented.

 Rights and Protections: This system upholds the rights of

individuals, including the presumption of innocence until proven
guilty. Defendants have the right to remain silent and to legal
representation.

 Objective and Critiques:

 o Not primarily designed to discover the truth but to test the
strength of each party's case, potentially leading to settlements
or alternative dispute resolutions.

o Criticized for fostering a "win-at-all-costs" attitude, which can

lead to injustices, especially if there are procedural flaws or if a
party cannot afford competent legal representation.

1.2.2 Inquisitorial System

 Usage and Jurisdiction: Predominantly found in countries with

codified legal systems.

 Procedure: Initiated by an examining magistrate who leads an

investigation and compiles a report for the trial court. During the
trial, the judge plays an active role in gathering and analyzing
evidence, questioning witnesses, and guiding the court proceedings.

 Judicial Role: The judge serves more as a fact-finder than as a mere

arbiter between two opposing parties. Advocates assist the judge in
uncovering the truth, rather than siding strictly with their client's
interests.

 Advantages:

o Emphasizes impartiality and the discovery of the truth, reducing

biases that may arise from unequal wealth or resources among
the parties.

o Seeks to ensure fairness and equal treatment of all parties by

the court.

 Challenges:
 o Investigations can be lengthy and complex, potentially
disadvantaging unrepresented or poorly represented
defendants.

o The system's heavy reliance on a judge's interpretation can lead

to decisions that may seem biased or predetermined, especially
since there is generally no right to remain silent for the
accused.

1.3 The Rule of Law and Its Application

1.3.1 The Rule of Law

 Definition and Complexity: The rule of law is a principle under

which all members of a society, including those in government, are
considered equally subject to publicly disclosed legal codes and
processes. The concept is recognized for its complexity and variability
in interpretation among scholars and practitioners.

 Function as a Democratic Safeguard: It prevents the concentration

of power by ensuring that no branch or member of the government
has unlimited authority, thereby supporting democratic governance
and protecting against authoritarianism.
 Legal Application and Enforcement: Specific laws, such as the
Police and Criminal Evidence Act 1984, exemplify how the rule of law
is applied in practice, regulating state actions like arrests to ensure
they have a legal basis.

 Academic Contributions:

o Tony Honoré: Stresses the importance of a government's

actions being limited by law. This includes principles such as
legality, equality, and procedural fairness, ensuring that laws are
not only applied consistently but are also clear and open to
scrutiny.

o A.V. Dicey's Interpretation: Offers a traditional British

perspective, highlighting three pivotal aspects:

 Absence of Arbitrary Power: Emphasizes a systematic

legal framework that curtails discretionary power of the
state.

 Equality Before the Law: Ensures that laws apply

equally to all individuals, regardless of social, economic,
or political status.

 Supremacy of Ordinary Law: Suggests that the ordinary

laws of the land (developed through judicial decisions)
should guide everyday legal interpretations rather than
arbitrary executive decrees.

 Challenges and Critiques:

o Conflict with Parliamentary Supremacy: Dicey

acknowledged the tension between the rule of law and
parliamentary supremacy, where laws created by Parliament are
final and can sometimes bestow arbitrary powers, potentially
undermining the rule of law.
 o Formal vs. Substantive Equality: Dicey's approach has been
critiqued for focusing on legal equality (formal equality) that
does not necessarily address the socio-economic disparities
(substantive equality) that can affect an individual's access to
justice.

Expanding Perspectives on the Rule of Law

 Friedrich von Hayek and Joseph Raz: These scholars provided

modern critiques and expansions of the rule of law:

o Von Hayek: Criticized the modern state’s role in diminishing

the rule of law by legitimizing every action it takes through
laws, which he saw as an erosion of law's restraining power on
state actions.

o Joseph Raz: Viewed the rule of law as a mechanism to control,

but not entirely eliminate, the exercise of discretionary powers.
He emphasized that the laws should be clear, publicized, stable,
and fair, ensuring they are applied evenly and that they
effectively guide public administration.

 Judicial Independence and Modern Legal Reforms:

o The Constitutional Reform Act 2005 in the UK highlighted

the importance of maintaining judicial independence and the
foundational principles of the rule of law. It codified the
separation of powers and reinforced the independence of the
judiciary, crucial for ensuring that judges can make decisions
free from political pressure.

o Global Implications: These principles are crucial in

international human rights law, influencing legal systems
around the world to adopt measures that ensure fair trials, legal
 representation, and access to justice, reflecting a global
consensus on the importance of the rule of law.

1.4 The Difference Between Civil and Criminal Law

 Distinction in Law Types:

o Civil Law: Referred to as private law, it deals with disputes

between individuals, businesses, or a combination of both. Civil
law governs private rights and responsibilities.

o Criminal Law: Known as public law, it involves actions

considered as offenses against the state or society at large. It's
aimed at punishing behaviors that threaten public safety and
well-being.

 Figure 1.3 Context: Provides a visual distinction between various

types of laws including constitutional, administrative, criminal,
contract, and others across international and national scopes,
distinguishing between public and private law categories.

1.5 The Relationship Between Law and Morality

 Definition of Morality: As defined by the Oxford English Dictionary,

morality is a system of values and principles of conduct that guide
behavior, which may be personal or collective within a society. It is
normative, prescribing what behaviors are acceptable or not.

 Influence of Religion: Moral values in various societies have been

heavily influenced by religious teachings, such as the commandments
in Christianity and the extensive moral guidelines provided by the
Koran in Islam.

 Morality's Pervasiveness: Morality influences almost every aspect of

human behavior, including interpersonal interactions, economic
transactions, and social conduct.
 Societal Views and Changes: Moral perspectives can vary widely
across different societies and times. Changes in societal views, such
as those on abortion, homosexuality, and other ethical issues, reflect
evolving moral landscapes.

 Academic Insights:

o Mary Warnock: Highlighted the complexities in defining moral

rights and wrongs, noting that societal attitudes towards moral
issues can vary significantly over time and between cultures.

o Emile Durkheim: His sociological analysis suggests that

increasing labor specialization, ethnic diversity, and the
diminishing influence of religious beliefs contribute to the
fragmentation of common morality in modern societies.

 Law's Reflection of Morality: The law often mirrors societal moral

standards, categorizing acts like theft and violent theft as criminal
due to their universally recognized immorality. Similarly, civil laws,
such as those covering torts like negligence, are designed to uphold
moral principles by compensating victims and preventing unjust
enrichment.

 Dynamic Interaction: Law and morality interact dynamically, where

law may influence societal morality and vice versa. This interaction is
particularly noticeable during crises when rapid changes in law or
enforcement may be necessary to align with the prevailing moral
sentiments of the time.

1.6 Law and Justice

Concept of Justice

 Foundational Definitions: Justice encompasses ideals such as

fairness, equality, and even-handedness, which are key to how
individuals perceive and interact with the legal system.

 Early Development: From a young age, individuals have an innate

sense of justice, which develops into more complex understandings as
they encounter diverse situations that challenge their initial
perceptions.

 Philosophical Scope: Throughout history, the concept of justice has

been explored by many great thinkers, leading to a rich tapestry of
theories that seek to define what justice means and how it should be
implemented within societal structures.

Types of Justice

 Procedural Justice:

o Focuses on the fairness of the methods and processes used in

legal proceedings.

o Ensures that all parties have an equal opportunity to present

their cases, and that the laws are applied impartially.

o Example: The integrity of legal procedures is upheld by systems

such as trials and hearings, where procedural rules are followed
to ensure fairness.

 Corrective Justice:

o Often associated with the concept of restorative justice, which

seeks to repair the harm caused by unlawful actions.
 o Aims to restore the balance between individuals or between an
individual and the state, often through compensation or
restitution.

o Example: In civil disputes like personal injury cases, corrective

justice is served when compensation is awarded to return the
injured party to their original state before the injury.

 Substantive Justice:

o Concerns the inherent fairness and justness of the laws

themselves.

o Requires that the laws be justly crafted, not merely applied

justly.

o Example: Evaluating whether laws are inherently fair or if they

disproportionately affect certain groups can be a measure of
substantive justice.

Challenges and Developments in Procedural Justice

 Legal Aid and Access to Justice:

o Fundamental to ensuring that all individuals can engage with

the legal system on an equal footing.

o Reductions in legal aid availability have sparked debates about

whether justice can truly be accessible to all, especially the
economically disadvantaged.

o Example: Over time, eligibility for legal aid in the UK has

decreased from covering 80% of the population to as low as
20%, significantly limiting access to legal resources for many.

Corrective Justice in Civil and Criminal Law

 Application in Law:
 o In civil law, particularly in tort cases like negligence, corrective
justice is pursued by compensating victims to the degree
possible.

o In criminal law, considerations such as the severity of the

offense and the intent of the offender influence sentencing, with
an aim towards both punishment and rehabilitation.

o Example: The application of sentencing guidelines to balance

punitive and rehabilitative goals reflects corrective justice.

Substantive Law and Justice

 Practical Implications:

o In contract law, justice is served by enforcing agreements and

rectifying cases where there has been an abuse of bargaining
power, such as through consumer protection legislation.

o The principle of proportionality in criminal sentencing, where

the punishment should fit the crime, is a core aspect of
substantive justice.

o Example: Laws like the Consumer Rights Act 2015 ensure that
contracts are fair and that consumers are not disadvantaged by
unequal power dynamics.

1.7 The Role of Law in Society

Foundations of the Rule of Law

 Essential Criteria for the Rule of Law:

o Law must be clear, publicized, and stable, accessible to

everyone to ensure that it can effectively guide behavior.
 o The existence of efficient enforcement structures is crucial to
implement laws consistently and fairly.

o An independent judiciary is essential to prevent the arbitrary

use of power by the state or any other entity, protecting
individual rights against abuse.

Lord Bingham's Core Principles

 Comprehensive Overview:

o In his seminal work, "The Rule of Law," Lord Bingham outlined

eight principles that are foundational for a functioning society
under the rule of law:

1. Adherence to Law: The state must respect both domestic

and international laws, ensuring no entity acts beyond
legal boundaries.

2. Defined Punishments: Individuals should only face

penalties for actions that are explicitly defined as unlawful
by the law.

3. Legal Resolution of Rights: Issues concerning

individual rights must be adjudicated according to strict
legal procedures rather than arbitrary decisions.

4. Accessibility and Clarity: Laws must be understandable

and available to all, ensuring that individuals can conform
their actions accordingly.

5. Equality Before the Law: All individuals should be

treated equally under the law with no discrimination.

6. Human Rights Respect: There must be a concerted

effort to uphold and protect human rights.
 7. Judicial Accessibility: Courts should be accessible and
affordable, ensuring timely and fair dispute resolution.

8. Efficient Dispute Resolution: Mechanisms should exist

to resolve disputes efficiently without prohibitive costs or
undue delays.

Roles of Law in Society

 Protection from Harm:

o Law provides mechanisms to safeguard individuals from

physical harm and protect their property from being misused or
damaged by others.

 Ensuring the Common Good:

o Laws facilitate the provision of essential services like education

and healthcare, aiming to benefit the entire society rather than
individual segments.

 Dispute Resolution:

o The civil justice system is designed to resolve disputes between

parties through formal mechanisms that are recognized and
trusted by society, helping maintain social order and contractual
integrity.

Mechanisms of Social Control

 Formal and Informal Controls:

o Informal Social Control: Encompasses influence exerted by

families, peer groups, communities, and societal norms that
guide individual behavior in a subtle yet profound manner.

o Formal Social Control: Involves explicit regulations enforced

by specific agencies, including the police, judiciary, and various
 administrative bodies that maintain order directly through legal
means.

Integration of Law into Society

 Legislative Framework:

o Lawmakers play a pivotal role in shaping society through Acts of

Parliament and delegated legislation, which enable local
authorities and councils to tailor laws to specific needs.

 Judicial Interpretation:

o The judiciary interprets laws, adding a layer of oversight and

adaptation to ensure laws remain relevant and are applied justly
according to evolving societal standards.

Importance of Law in Modern Society

 Prevention of Anarchy:

o By providing a structured framework for behavior and conflict

resolution, law helps prevent anarchy and chaos, protecting
vulnerable populations and ensuring a stable societal
environment.

 Balance of Interests:

o Law continually seeks to balance competing interests within

society, navigating complex interactions between individual
rights, societal needs, and governmental authority.