Extracted Notes

LAW103
Prepared by Mohamed Fayaz

This is an Extract of the discussions of the class. This does not serve and should not be
taken as Lecture Notes. These Extracted Notes are prepared ONLY as a guidance for the
students in preparation of their own notes and their research. Certain portions of the
class discussions are likely to be omitted in this document and therefore students are
advised NOT to solely rely on these notes.

Topic : Legal Systems

Legal Systems are mechanisms and due processes set in place by every country /
jurisdiction to enforce and observe law.

These mechanisms and due processes dictate:

● Who makes the law, enforces law, adjudicates based on the law;
● How those laws are amended or abolished;
● The source based on which the law is made;
● Under what circumstances and due process such law is made;
● How those laws are interpreted; and
● Principles and doctrines based on which those laws are applied and interpreted.

Types of Legal Systems

1. Common Law;
2. Civil Law;
3. Islamic Sharia.

Common Law

1
The Common Law legal system is one of the most widespread legal systems in the world.
It is a compilation of case laws which is more accurately referred to as “judicial
precedents”, whereby the decisions of the judges (in court cases) are taken / regarded as
law.

History

The beginning of the Common Law legal system is always attributed to the conquest of
England by William the Conqueror in 1066 AD. Post his military campaign of claiming
the English throne, King William sought to standardize how judicial matters / cases are
adjudicated by sending his magistrates to all towns and villages across the country. These
magistrates kept a detailed record of the cases they have handled and the decisions they
have issued. Once all magistrates returned they found that in similar cases with similar
facts, they issued similar judgments. Hence it was then agreed that any future cases with
similar facts should also be adjudicated in the same manner. Thus the doctrine of Stare
Decisis was born (meaning deciding cases based on previous decided cases).

The judgments previously issued (and currently referred to) then became known as
“Judicial Precedents” or simply precedents.

Fast forward today, most of the former British colonies are common law countries.

How Common law works

In a Common law country, judicial cases are decided in the following manner:

2
Suppose a case is presented in front of the court. The court has not come across such a
case ever before. The existing laws of the country haven’t envisaged such a scenario
hence there is no solution available either.

If a court is given a case which does not have an already established remedy / solution (a
decided case), then it follows the “no remedy” channel. The court considers the facts of
the case and other legal principles and issues a verdict. This is now a precedent, and this
will remain available to be referred to by other judges in the future if a similar case
arises.

Sources of law

It is well understood that Judicial Precedents hold an esteemed position within the
sources of law for a Common Law country. Normally a common law country would hold
its constitution, statutes and judicial precedents as the primary source of law, whereas
the secondary sources of law include regulations and non binding treaties. Tertiary
sources of law include the customs and traditions of that country.

Civil Law

Civil Law is also referred to as Continental Law or Roman-German Law, it is the most
prominent legal system in Europe. It is a system of law where codes (a compilation of law
on a certain area or subject) are utilized as law, which is then supplemented by detailed
statutes.

For example the Code Pénal of France is a code which comprises all crimes from petty
theft to murder.

History

It is debated as to what event truly led the beginning of Civil Law as a legal system. The
most prominent consensus among scholars is that Civil Law began during the years of
the Byzantine Emperor Justinian I, where he ordered a complete revision of the Roman
Law in 529 AD. This revision required a collection, revision and codification of the
existing Roman Laws in all its territories, and is famously known as Corpus Juris Civilis.

The practice of codification spread to conquered territories of Civil law countries

throughout history. This is usually a result of countries conquering new territories and
requiring those territories to adopt their law and practice. For instance, Napoleon

3
Bonaparte enacted the Napoleonic Code in 1804 AD to standardize the Family and
Property laws in territories he newly conquered and annexed as French territory.

How Civil Law Works

In Civil Law countries, Codes are developed and put in practice - which are broad and
extensive. They cover an entire aspect / area of law, meaning that each Code will ideally
have all the statutes related to that area.

For example, if there is a Family Code, it probably means all the laws related to Divorce,
Marriage, Guardianship and Parental Authority, Inheritance Claims will be compiled into
one single Code (you can assume it as a book).

When a case is referred to a judge in a Civil Law country, instead of utlizing judicial
precedents, the judges will give reference to the Codes and make a decision. Those
decisions are not required to be referred by judges adjusticating in later cases. Meaning,
there is no obligation to ensure that the decisions are all standard and the same, but
rather the importance is given to uphold the spirit of the Code. Therefore, it is not
uncommon for two judges to arrive at different judgments on two cases with similar
facts.

Sources of Law

The primary sources of law in a Civil Law legal system are the Constitution and the
Codes. Statues (which are made to compliment the Code) are often placed as a secondary
source of law although it is not uncommon for some Civil Law countries to consider them
as a primary source of law. Regulations and Conventions are categorized as secondary
sources of law. Customs and Tradition (just as common law countries) are considered as
tertiary sources of law.

What is most interesting here is that no importance is given to Judicial Prcedents in Civil
Law legal systems.

Differences between Common Law and Civil Law

The following are a few differences between Common Law and Civil Law legal systems:

Common Law Civil Law

Primary Sources of Law Constitution, Judicial Constitution, Codes

Precedents, Statutes

4
 Secondary Sources of Law Regulations, Policies, Statues, Regulations,
Conventions Policies, Conventions

Who can make laws Parliament, Judges Parliament

How judgements given by By referring to earlier By referring to the same

Courts are standardized precedents and deciding code of laws

------------------------------------------End of Extract Notes--------------------------------------------