PART A (i) – ESSENTIAL ELEMENTS OF LEGAL SYSTEMS

Market economy – an economy where the allocation of resources is left up to the market
forces of supply and demand and the workings of the price mechanism. Most wealth is
owned by individuals with a minimum being collectively owned.

Planned economy – an economy where the allocation of resources are made by the
government. Individuals are allowed to own some personal possessions, but most wealth
is held collectively by the government.

Mixed economy – the most usual model found, incorporating elements of both market
and planned economies. Resource allocation is determined partly by government
decisions, both direct (eg defence spending) and indirect (eg taxes and subsidies), and
partly by the market forces of supply and demand. Total wealth is split between the
public and the private sectors.
Rule of law

Rule of law is the situation that exists when members of a society abide by a set of rules
that govern their behaviour, whether that is by consent (for instance in a democracy) or
by compulsion (for instance in a dictatorship).

The concept of rule of law is closely bound up with that of separation of powers. Most
consensual countries in the world have a legislature, an executive and a judiciary body.
Separating the three avoids the dangerous situation where power is completely
centralised in one person or a very few people. Together, they make up the mechanism by
which the rule of law succeeds. In most countries there is a written, codified constitution
which delineates the powers of each of the three organs of state, but even in common law
systems such as the UK, which has no written constitution, there is clarity about the roles
of and interaction between the three organs.

In some nations, such as the US, the three bodies are completely separate so that each is
accountable to, and can operate as a ‘check and balance’ on the others. In most countries,
such as the UK, there is a complex relationship between the three sets of powers, so that a
balance is struck between control and accountability, on the one hand, and actually
‘getting things done’ on the other.

1. The legislature is the body (usually elected by the people) which decides on what laws
should be passed to ensure that the people’s wishes are met. Where there is a written
constitution the legislature cannot pass a law that conflicts with underlying principles of
the constitution, such as the right of free speech. If it does make such a law then the
judiciary has the power to strike out that law.

2. The executive is the body (also usually elected) that makes the decisions that put the
legislature’s laws into action via the civil service and other state bodies. The executive
implements rather than makes the law, and is subject to review by the legislature and the
judiciary.

3. The judiciary is the body (which is sometimes elected) which rules on any disputes
about laws, whether these are between the government and the people (criminal law) or
between individuals (civil law). In most legal systems the judiciary do not in theory make
the law; they decide issues in relation to the law that has been made by the legislature and
implemented by the executive, and they review the actions of both. In fact in their role as
interpreters of the law in most systems, judges do effectively ‘make’ law.
Doctrine of judicial precendent

A precedent is a previous judge’s decision which another judge is bound to follow in

deciding a subsequent case. The doctrine of judicial precedent or stare decisis is
therefore based on the idea that a judge’s decision in a case should be consistent with
previous legal decisions on similar cases. This gives predictability and stability to the law
while allowing it to develop. Such a doctrine does not have a parallel in civil or Sharia
legal systems.

Rules for applying a precedent:

1. A precedent must be based on a point of law, not a point of fact.

2. It must be part of the ratio decidendi (reason for the decision), and not just the
obiter dicta (in passing), of the previous case. Ratio decidendi is any rule of law
that the previous judge has used in coming to his decision. Obiter dicta is simply a
point made in passing by the previous judge that was not critical to the decision
and will have only persuasive effect on a subsequent judge.
3. The material facts of the two cases must be the same.
4. The prior court must have a suitable (usually superior) status in the court
hierarchy.

Court status:

In England, the court system is divided into a system of lower and higher courts. The
lower courts cannot make precedents of their own and must follow precedents of higher
courts. The higher courts create precedents for the lower courts and each higher court is
bound by precedents created by the court above it in the hierarchy and also by its own
precedents.

Avoiding precedents:

It is possible to avoid a precedent by distinguishing a case from a previous one by saying

that the facts are not materially the same, this being a matter of judgement.

Presumptions of statutory interpretation:

In common law systems, an accepted role of judges is to interpret enacted statute law.
This is not the case in other systems. In theory at least, judges in both civil and Sharia law
traditions are not supposed to interpret the law but merely to apply it.

Accordingly, common law has developed a number of presumptions in relation to

interpreting statute. Some of these are as follows:

1. A statute does not alter the existing common law.

2. A statute does not have retrospective effect to a date earlier than its becoming
law.
 3. A statute does not repeal other statutes.
4. Any point on which the statute leaves a gap or omission is outside the scope of the
statute.

Role of judges

(a) Common law system

Judges in a common law system build up the case law on which the system is based.
They do this by setting and applying judicial precedents, and by interpreting statutes.

Interpreting statutes

In common law systems judges also play a role in interpreting statutes passed by the
legislature and applying them or not to the facts of a case. In some systems, such as the
US, judges can rule that a statute conflicts with the written constitution of the state and
thereby strike it down. In other common law systems, judges cannot overrule the
legislature in this way. In the UK this is because of parliamentary sovereignty, which
means that statute is ultimately superior to case law.

When interpreting a statute and applying it to a particular decision, the judge is in fact
adding to the body of case law in a common law system. There are therefore certain
clearly defined presumptions of statutory interpretation, such as that statute is not
intended to override the existing common law, which apply unless the statute is explicit
on that point. There are also certain rules for statutory interpretation, such as the literal
rule (words have their plain meaning).

(b) Civil law system

Most civil law systems are systems of codified law, where the legislature produces a set
of general principles and some specific codes, such as a civil code or a criminal code. The
rules in the specific codes are applied where relevant by the judges to the facts of the
case. If there is no specific rule available then judges apply the general principles. Judges
cannot make law as is the situation with case law in common law systems. They simply
apply the law. In addition they perform judicial review, in which they can rule on
whether or not a particular statute conflicts with the system’s written constitution or
codes.
Civil law system

Principles of civil law:

1. Certainty

In civil law systems there is a distinct division between those who draft the law and those
who apply it. In contrast to a common law system, where judges create legal precedents
and therefore shape and develop the law, civil law judges do not have such a role. Rather,
they apply enacted law which has been drafted by legislators. This promotes the concept
of certainty, as in theory, the answer to any legal problem can be found in enacted law,
and the relevant piece of law will be applied.

Some general principles regarding how civil law system judges should apply the law
exist. When the meaning of a statute is clear and unambiguous, judges must not use their
power to interpret it in a different way. When ambiguity exists, civil law system judges
are required to interpret it in accordance with the spirit of the drafted law, not necessarily
to the exact written requirements. The judge is required to keep in mind the intention of
the legislator when delivering judgement. Certainty is therefore promoted.

2. Comprehensibility

The famous civil law system Codes, for example in France, the Code Napoleon, is an
example of this comprehensibility, as when law is codified in the civil law system, this
results in a comprehensive code of law in a particular area being created. That is, in the
French system, theoretically all civil (as opposed to criminal) law is contained within the
Code Napoleon.

Also, the fact that judges do not create law also promotes comprehensibility in the law, as
it allows legal codes to be finite and therefore comprehensive. In contrast, in the common
law system, enacted law can be developed possibly beyond the original intention of the
legislators, through case law. By implication, in the common law system, enacted law is
never a comprehensive code as it is always being developed and, in effect, added to.
Sharia law system

Principles

Sharia is the Arabic word for ‘a way to a watering place’. A vitally important principle of
Sharia is that it is divine law ordained by Allah for determining the way for mankind to
live.

This has various implications for Sharia in practice. First, it means that it is a legal system
that comprises more than the individual’s ‘public’ life but it also sets down rules for an
individual’s moral, ethical and religious life in a way that both common and civil law
systems do not. Second, it means that the law has been set by a higher authority than
humans and is therefore not continually developed (by enacting further law) in the way
that common and civil law are.

Role of judges

Judges in Sharia law are required to apply the law, not create it. In this way they are more
comparable to civil law judges than common law ones. In strict Sharia tradition, judges
are required to be clerics, or Imam, as it is only appropriate for suitably qualified clerics
to apply the law.

In applying the law, which is primarily sourced in the Quran, a Sharia judge may turn to
the Sunnah to see how the law should be applied in practice. The Sunnah is based on
records of what the Prophet Muhammad said, and how he interpreted the law in the
Quran.

The Sharia judge may also use the secondary sources of law to determine how to apply
the law. The secondary sources of law are various schools of law based on the writings of
major jurists. These schools of law were built up as a result of the relevant legal scholar
making use of what are known as ijithad or methods of interpreting the law. The basis
for using ijithad is a story recorded in the Sunnah about the Prophet questioning a cleric
on how he would decide legal cases.

Example

Pakistan has adopted Sharia law, although it still retains elements of an older system and
judges are not all required to be clerics as discussed above. Pakistan has a Federal Shariat
Court to ensure that law enacted by legislators is not repugnant to Sharia. The judges in
this court are required to carry out judicial review to ensure that the law is not an offence
to Sharia principles.
Sources of law

Case law

Case law is the body of law made by judges over time in the decisions that they reach in
the cases before them. These set precedents which may or may not be binding on later
decisions. In English law, case law comprises the common law and equity, two of the
major sources in what is known overall as a common law system.

Statute law

Statute law comprises the legislation that is made by the country’s legislature. In England
this is the Houses of Parliament. Legislation may be primary legislation, which starts as a
Bill and becomes an Act of Parliament, or it may be secondary or delegated legislation,
drafted by government departments and enacted under powers given by a primary piece
of legislation. UK statutes are not the only form of binding legislation in the the UK, EU
regulations are also immediately binding. The UK is committed by EU membership to
enact the provisions of EU directives into UK law. Statutes are not always new laws, they
may amend previous statutes, or they may codify the common law, so making a body of
previously binding case law redundant.

In civil law systems, statutes containing specific rules in specific circumstances made by
the legislature are the main source of law. In such systems there is also secondary
legislation, called administrative regulations. Statutes may not conflict with the
underlying written and codified constitution of the state.

Codified law

Codified law is the set of underlying principles contained in a constitution or a code (such
as the French Code Napoleon) passed by the legislature in civil law systems. It is similar
to statute law in that codified law is the product of the country’s legislature rather than its
judiciary, but because it contains general principles which must not be contradicted by
statutes, its effect is to act as a restraint on future legislatures. In the US, ensuring that
new statutes do not conflict with the Constitution is the job of the very powerful Supreme
Court.

When trying a case a judge will look at the relevant code, such as the commercial code in
the case of contract law, to see whether it can be applied directly. If there is no direct
application then the judge must apply the general principles of that code in order to reach
a decision.
Precedent

(a) Common law

(b) Civil law

In civil law systems law is codified, there is no concept of ‘judge-made law’. Judges
apply the law as drafted by the legislature to the facts of cases before them. Previous
decisions by judges may be persuasive or at least helpful in helping a judge to apply the
law to particular facts before the court, but they are never binding and so could not be
termed precedents in the same way as in the English common law system.

(c) Sharia law

In Sharia law systems the law is explicitly based on the religion of Islam, so it is
essentially a binding god-given law incorporated in the Quran and the Sunnah, which
comprise Ahadith (interpretations by the Prophet). Persuasive ideas are also put forward
by various scholars of Sharia law, and if there is unanimity among them then these ideas
are also binding. Judges cannot create law by means of precedent as they cannot change
the law. However, they do have to apply the law to the facts of cases brought before
them, which means that the law may need to be interpreted.