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JURISPRUDENCE: PRESENTATION OF THE TEXTBOOK
MODERN LEGAL SYSTEMS
DOI: http://dx.doi.Org/10.14420/en.2018.4.6
Svetlana Boshno, Doctor of Legal Sciences, Professor, Editor-in-chief Journal «Law and Modern States», Professor of the Institute of Public Administration and Management Civil Service of the Russian Presidential Academy of National Economy and Public Administration, e-mail: [email protected].
Abstract. We proceed with publishing extracts from the textbook on jurispru-
dence written by Professor Svetlana Boshno, Doctor of Juridical Science. The legal system specifies all components of the political and legal environment in their integrity. The author examines such fundamental constituent components as the legal system, the system of legislation, legal methodology, sources of law in their interrelations, legal practice, legal relations.
It is essential to classify legal systems for numerous purposes, including the following: identifying priorities in law-making, taking legal decisions, specifying legal values and benchmarks. Though the textbook presents all types of legal systems, the author focuses on the Romano-Germanic legal system, since this system is applied in the Russian Federation. The legal system appears as a set of interrelated, coordinated and interacting legal means that govern social relations along with the components that determine the country's level of legal development. The specific legal system in a separate state cannot develop in isolation, it is necessarily affected by other types of legal systems and also makes its global impact. In legal theory, such mutual effects are viewed as unification or disintegration of legal systems.
The author reviews historical types of legal systems, including those that are no longer important or have been significantly transformed. For example, the author describes relationships between the socialist and non-differentiated legal systems. Keywords: legal system, concept of the legal system, structure of the legal sys-
tem, classification of the legal system, Romano-Germanic legal system, Anglo-American legal system, religiously communal legal system.
1. Concept and structure of the legal system. Legal reality of any existing state is a much more complex phenomenon than the law itself, the system of law. Consequently, it is necessary to distinguish between a number of concepts, including such concepts as «the legal system (framework)», «the system of laws (the body of laws)», «legal superstructure», «mechanism of legal regulation», «legal family». The term «legal system» does not replace or change other legal concepts, i.e. the concepts are not equal. In fact, the term «legal system» has a self-consistent meaning, at the same time it is closely related to the above categories.
Due to lexical similarity between the concepts of «the legal system» and «the system of laws», there exists a tendency to mix them. Still, it is enough to compare scope of the two concepts to conclude that the latter is narrower since it presents only part of legal framework, which includes other state legal phenomena. The concepts «legal system» and «legal superstructure» are also different. While the former serves to express internal systemic structural relationships of legal phenomena, the latter indicates a place of the legal phenomenon in the social system.
Furthermore, we should also distinguish between the concepts of «legal system» and «mechanism of legal regulation». While the notion of the legal system plays an important role in understanding the structure and interdependence of its components, the notion of the mechanism of legal regulation highlights such aspects as functions of the legal system components in regulating legal relations.
The legal system is a set of interrelated, coordinated and interacting legal means that regulate social relations along with the components that determine the level of the country's legal development.
The legal system comprises the following components:
— complex of legal values associated with a particular type of legal consciousness, which reflects cultural, historical and national characteristics of a particular state;
— law-making as a legislative regulatory process of interconnected stages and actions aimed to create normative legal acts, to change or repeal them;
— legal array of enactments placed in hierarchical order that are in force in the territory of a certain state.
The legal system, as stated, presents a set of legal tools designed to govern social relations, together with some components characterizing the level of the country's development.
The structure of the legal system consists of the following components:
— spiritual or ideological phenomena (legal science, legal concepts, legal principles, legal culture, legal policy);
— the law and the legislation, which role is to enforce it;
— legal relations;
— legal practice;
— legal drafting methodology (which is also referred to as legal methodology or legal engineering).
It is possible to structure the listed components in a different way, i.e.:
— the law as such, which is the core of legal reality in its integrity;
— legal (primarily judicial) practice, which in certain legal systems serves as grounds for determination if the individual's behaviour shall be classified as rightful or wrongful, and in all cases it is considered in legal bodies' activities;
— the prevailing legal ideology, which under certain socio-historical conditions serves as grounds for determination if the individual's behaviour shall be classified as rightful or wrongful, and in all cases it is considered in legal bodies' activities.
When examining the legal system of a particular country as a complex, multicomponent phenomenon, it is essential to be utterly clear in identification of the law in its institutional capacity so that we can determine its role in the functioning of the state. It is equally important for states where the law is explicit and well-pronounced, and for states where the legal system is dominated by other components. Herewith, it is both unacceptable and unreasonable to depreciate the role of other components, legal practice in particular. The fact that these components are inseparable and integrated is evident in legal systems of various types. Some types of legal systems implies that public relations are regulated both by the law as such and by making resolutions based on precedent. Others involve such a procedure, in which competent authorities, primarily judicial bodies ensure and enforce legal norms; furthermore, in order to enforce the law, such authorities issue enactments that contain customised legal instructions.
Legal awareness, legal psychology and legal ideology in certain legal systems rather than being exceptionally the basis for legal regulation, have a sustainable impact on legislative rule and on the nature of judicial decisions.
Any national legal system is aggregate reality of social and historic components, which interact with other parts of the given society, including its economic relations, the state, political regime, ethics, culture, all other subsystems.
Legal systems absorb specific features of the economic, political, historical and national development of the country, its social and political traditions, peculiarities of culture and moral atmosphere of the society, living conditions, standards of jurisprudence, and people's mentality. These factors largely determine an actual role and value of the legal system, its place in the general structure of social and statutory regulation, and, consequently, its relationship with other regulating factors, i.e. morality, religious and corporate norms, as well as with those customs that are not regulated by law.
Formation and development of a particular legal system is affected by various factors. These include social and economic levels, political, intellectual and cultural aspects of life in the society, such as science, religion and morality. There appear consistent patterns in developing the world legal systems, i.e.:
— interaction of factors affecting the evolution of legal systems shows tendency to become more complicated;
— legal systems emerge in a certain succession;
— legal systems in individual countries constantly advance, i.e. they are unified and perfected in order to meet current needs of the society and state.
National legal systems have certain properties, which makes it possible to classify them into legal families. Such properties include sources of law, the structure of law, various ideas about the place and role of the law in life of the society and state, legal methodology, principles and concepts that lay basis for making the law (political, philosophical, religious foundations of the law).
The term «legal family» refers to a set of legal systems with similar attributes.
The legal family is understood as a more or less broad aggregate of national legal systems within the same type of law, with common historical background that served as basis while the law was formed, similar structure of sources, leading industries and institutions, enforcement tools, juridical concepts and notions.
Typology of modern legal systems. Types of legal systems vary with a range of attributes. The leading criteria include the structure of the legal system, the genesis of law and state, the system of sources of law and other criteria.
It is traditional to classify legal systems according to their ideology (including religion, philosophy, economics, social structure) and legal methodology. This classification allows us to distinguish the following types of legal systems: Romano-Germanic, Anglo-American, socialist, religious and traditional systems.
Another classification may be based on the legal style, which takes into account such factors as the origin and evolution of the legal system; singularity of juridical thinking; specific legal institutions; the nature of sources of law along with methods to interpret them; ideological factors. Using this complex foundation allows to distinguish the following types of legal families: Romanic, Germanic, Scandinavian, Anglo-American, socialist, Islamic law, Hindu law.
We can also use the following essential criteria to identify major contemporary legal systems:
— historical genesis;
— system of sources of law;
— structure of the legal system (leading industries and institutions of law). These criteria constitute grounds for the following classification of legal
families: Romano-Germanic; the family of common law; Scandinavian; Latin-American; Muslim; Hindu; the family of consuetudinary law; Far-Eastern family.
There also exists the typology that identifies four main families of national systems of law: Romano-Germanic; Anglo-Saxon system of common law; communal religious (non-differentiated) legal systems of numerous Asian and African countries; ideological legal systems under authoritarian political regimes. The traditional classification goes as follows: the Anglo-American legal system of common law; continental legal family; the legal system dominated by Muslim religious ideology.
Combining the traditional Marxist-Leninist typology based on the theory of socio-economic formations (slave-owning law, feudal law, bourgeois law and socialist law) and the classification within these types allows us to create the most balanced and holistic view of the legal map of the world. This approach allows us to distinguish Romano-Germanic, Scandinavian, Latin American, Far-Eastern legal families, the family of common law, and socialist law.
In the following part we will consider some of the legal families that are most often identified by experts in the field of comparative law.
2. Romano-Germanic legal family is typical of the countries where legal science is based on Roman law. It implies that the priority is given to rules of law, which are considered as rules of conduct compatible with justice and morality.
The family of Romano-Germanic legal systems emerged in Europe. It has evolved since the XII-th century due to efforts of European scientists who used the Emperor Justinian's codification of laws to formulate and elaborate a legal science, which would be shared by all and adapted to conditions of the modern world.
The Romano-Germanic legal system includes the legal systems of such states as France, Germany, Italy and others. This kind of legal systems is characterized by a high level of regulatory generalizations, which is achieved by means of codified legislative acts shaped as abstractly formulated norms and a logically complete structurally closed regulatory system. Accordingly, legal systems of this group manifest themselves as having a strong regulatory and legislative foundation; consequently, collective consciousness sees them as systems where the law appears mainly in the form of «a legislative act».
This system, while being formed, was influenced by peculiar economic conditions. We mean that to overcome feudal fragmentation and to create centralized states, continental Europe acted through central government bodies, which adopted such effective means of social regulation as laws, codes, and the abstract norms contained in them.
Since the XIX-th century the law has been playing the dominant role in the Romano-Germanic family. The countries that belong to this family have numerous codes, such as civil, criminal, civil procedure, criminal procedure and some others.
Legal norms are understood as rules of conduct that are inclusively and universally binding, they are not aimed to determine a particular case, but rather to create general guidelines that would rule on all cases. As contrasted with how it happens in the family of common law, legal norms here are not created by judges.
All countries of the Romano-Germanic legal family are countries with the written law. Constitutions, codes and laws form the basis for the system of sources of law; besides, customs, judicial practice, the doctrine and certain principles of law have some influence here as well.
The law is the main component of this system, that is, it is the leading source of law. It regulates practically all important spheres of public life. In all countries of this system, there exist written constitutions supported by constitutional laws, which are recognized as the dominant source. The norms presented in constitutions and constitutional laws are considered to be the highest legal force, which manifests itself in two ways: first, laws and bylaws must comply with the constitution, which is secured by legislation; second, there is an established judicial control over the constitutionality of laws. Thus, constitutions determine authorities of state power bodies in law-making, and thereby identify different sources of law.
In this legal family a significant contribution is made by international treaties. Some countries have even legislated superiority of international treaties' legal force over that of domestic legislation.
Interpretation of laws plays an important role in the process of applying the legislation in practice, for laws form only the basis and framework of legal constructions, and therefore require numerous additions through interpretation.
Among other sources of law in Romano-Germanic family, numerous bylaws also play an important role. Moreover, their significance is now on the rise.
The position that the custom holds in different countries of the given legal family varies, while it has practically lost the role of an independent source of law.
Sources of law commonly include general principles of law, which either arise from the law / are directly stipulated through the law, or exist beyond the law. These principles reflect the necessity for the law to satisfy demands of justice and ethics, which may vary with the epoch and a certain instant in time. General principles of law play a significant role in the course of justice. Under certain conditions, they can serve as reasons for case solutions (analogy of law).
We would like to illustrate this system by examining how this system operates in Germany. The foundations of the German legal system were laid in 1867, when a number of states headed by Prussia united in the alliance called the North German Confederation. In 1871 the Confederation was reorganised into the German Empire. Before publication of laws common for the whole Empire, the newly formed state continued to operate legislative acts and legal practices of the principalities, cities and other territorial associations that became its part. Laws of Prussia, Bavaria and Saxony along with customary law served as basis for development of the nationwide law.
The Constitution (Basic Law) is of paramount importance in the legislation in effect in Germany. This document opens with the brief preamble and the section on basic rights of citizens; it thoroughly regulates relationships between the Federation and all the lands that form parts of Germany, i.e. constituent territories of the Federation; it also defines government, administration and justice
systems. Unlike other countries, Germany, when interpreting laws, pays a great attention to materials of the commissions that prepared corresponding enactments.
Decrees issued under the law by the federal government, ministries or governments of constituent territories, along with legislative acts, are also recognised as important sources of law. Till recently judicial practice in Germany generally has not been considered as a source of law. However, today Germany recognises an important role of the Federal Constitutional Court and other higher judicial institutions, whose decisions are among sources of law both when laws are applied and when they reveal inaccuracies or gaps in legislation. Conceptually, customs have ceased to be one of sources of law.
To sum it up, we would like to state the following.
Romano-Germanic legal system is characterised by sophisticated regulatory generalisation, which is achieved through codifying statutes that appear in the form of abstractly formulated norms and a complete logical structurally closed normative system.
3. The Anglo-Saxon legal family, also known as the family of common law, is the most widely-spread family in the modern world. The family includes legal systems of such countries as England, Northern Ireland, New Zealand, and many others. About one third of the world population lives in Anglo-Saxon countries. The situation that this legal family is so widespread can be partially attributed to Great Britain's colonial past.
The principal difference is that in the Anglo-Saxon legal system the main source of law is the norm formulated by judges, whereas legal regulation is based on legal practice and precedents. Due to this approach, the law here is more flexible and less abstract than the law in the Romano-Germanic system, besides it makes the law more casuistic and less certain. The law is not divided into private law and public law, there exist no European type codes. Branches of law are not as clearly identified as in continental legal systems.
Another distinction of this legal family is the way lawyers are trained and qualified here. While in the Romano-Germanic legal family justice has always been exercised by judges who are to have university legal training, a judge in the Anglo-Saxon family would acquire his or her qualification by working as a lawyer (attorney, barrister, solicitor, counsel, advocate) and thus exploring practices of legal proceedings. To have a university degree and pass professional exams has only recently become an important prerequisite for becoming a lawyer or a judge.
One more distinctive feature of this family is that norms of the Anglo-Saxon law aim to resolve one particular problem rather than to create a general rule of conduct intended to handle similar situations in the future.
The Anglo-Saxon legal family is divided into two separate groups: the English law and the US law.
Let us examine peculiarities of the English law. When speaking of sources of law, we note that judicial practice has the principal value. The second most important source of law is legislation. Still, historically formed structural features
of the English law account for the fact that the role of legislation here pales in comparison with that of legislation and codes in countries practicing the continental law. Sources of law also include custom, doctrine and reason, but they are less significant here.
The judicial branch of government in England is as powerful as legislative and executive branches. Senior Courts are empowered with extensive competences, which include participating in creating common law and equity law; contributing significantly to establishing rights and freedoms; solving any disputes; regulating their own work procedures. In certain spheres supreme bodies are entitled to deliver orders to the executive branch bodies, and also to sentence to imprisonment for contempt of court. The main source of the English law has always been the judicial precedent, that is the decision of a supreme court, which is binding both for this judicial authority and for lower courts. The basic principle of the judicial precedent is that similar cases are resolved in similar ways.
The common law (aka decisional law, case law, law of practice, unwritten law or judiciary law) is combined with the statutory law (aka written law, based on statute laws). Moreover, the role of the latter is increasing. The English court has a wide range of discretion powers regarding legislation, i.e. the court can nullify actions of other branches by cancelling statutory instruments and executive acts.
The English Parliament issues 80 laws every year published in 50 volumes. The English law is casuistic due to influence of judicial practice. England has no written Constitution. Legislative acts issued by the oldest Parliament in the world, which is more than 700 years old, play the role of the Constitution. The Parliament is controlled exclusively by public, while vox populi is of great importance in English practice. Besides, the Parliament has to comply with the European Community law, which takes precedence over the common law.
An increasing role of legislation does not directly mean that the judicial precedent loses its positions. Some of the institutions are governed by the case law (certain contracts, liabilities resulting from breach of an obligation and other civil offences). Furthermore, due to long-standing peculiarities of the English legal framework, any newly adopted laws cannot function at all without a number of related cases in precedent.
In the 20th century more and more legal acts were issued by executive bodies, (so called delegate law-making), such practice having steeply expanded its ranges.
In England custom as a source of law is of secondary importance. The customary law existed even before the common law emerged, but it has restricted applications. Thus, under the law of 1265, there could be used only immemorial customs, i.e. customs that emerged before 1189. This restriction applies only to local customs, for which one should prove that they are long-standing before one applies them. At the same time, in trade customs are applied with no restrictions, there even appear new customs. In public life, the role of customs is also great, especially constitutional customs that make up for absence of relevant statutory provisions.
The English law has spread over time far beyond the borders of England itself. Moreover, it has been constantly changing as affected by peculiar conditions of the countries that adopted the English law. The degree of changes varied, depending primarily on the strength of the bond between the given country and the UK, on specific geographic conditions, and on features and impact of local civilizations.
The structure of the US law, although generally similar to that of the English law, has a rather large number of specific features. The most significant differences account for a completely different administrative structure in the United States, resulting in existence of the federal law and the law of individual states within the US legal system, while the English legal system has nothing of the kind.
4. Undifferentiated (religiously communal) family. A district feature of the religiously communal legal system is that legal elements here do not function independently, i.e. they are bound by religious and customary communal norms. Consequently, legal systems belonging to this group, appear as dogmatized and traditional systems. In mass legal understanding they are perceived as systems, in which the main regulating force is the dogma of faith, religious teaching, tradition.
Religiously communal legal systems are typical of stagnant federal public structures.
In substance, this family is relic of the past «prequel» of law.
Such legal systems exist in Muslim states of Asia and Africa.
This law originates from the Koran and is treated as something given by the God. Since the law is divine and was delivered to people once and forever, society should be governed by this law without trying to create own new law when affected by certain conditions and circumstances. This law evolves through interpretations done by Muslim lawyers. The law as it is understood now, i.e. as an act issued by a competent authority, does not exist at all in the Islamic law.
The Islamic law also known as Muslim, Koranic, Mohammedan or moslem law is a unified Islamic system of sociocultural regulation, which includes both legal norms per se and religious and moral postulates along with customs.
The Islamic law is distinct from other legal systems by its singularity. Due to the fact that it was formed in ancient time, it has such inherent features as archaism of some institutions, casuistry, absence of a clearly expressed systemic structure. Being founded on the Koran, the Islamic law presents a system, which does not depend on other legal systems that have a different source.
There are four most important sources of the Islamic law: the Koran, which is the Holy Book of Islam; Sunnah, which is the collection of traditions associated with the God's agent; ijma (consensus), which is the unified agreement of the Muslim society; qiyas, which is the judgment by analogy. There exist varying interpretations of the sources system in different regions, regional interpretation being affected by local original elements of customs and culture. Though there are a number of schools of thought, differences concern only details, not general principles.
The Koran is the basis of the Islamic law. It contains Allah's voicings addressed to his last agent and prophet Muhammad. The Koran has a paramount importance as a source of law. However, the Koran contains relatively few legal provisions and cannot satisfactorily serve to regulate social relations in the Muslim world in all their diversity. Legal stanzas of the Koran relate to various issues: personal status, the Muslim analogy of the civil law, constitutional stanzas, international law, criminal law, judicial procedure, economics and finance.
The Sunnah, in its turn, narrates the prophet's life and renders his behaviour, which are to serve as an example for believers. The corresponding edition presents a collection of traditions (adats) concerning Muhammad's actions and statements. Presumably, it was created in the XI-th century AD by Dr. El Bockhari and Dr. Moslem. Sunnah is a secondary source of the Islamic law, which contributed to perception of the customary law that preceded emergence of Islam.
Ijma is considered as the third source of the Islamic law. Its aim is to deepen and develop legal interpretation of divine sources; it acts as a method to fill gaps in the Islamic law where neither the Koran nor the Sunnah provide a convincing answer to raised questions.
Another source of the Islamic law is judgment by analogy (qiyas). When interpreting any law, Muslim lawyers apply reasoning, which "combines revelation with the human mind". Essentially, qiyas is the application of prescriptions established by the first three sources to such cases that are not stipulated in those three sources. Still, the analogy is limited. With the help of judgment by analogy, one can mostly make a decision based on existing legal rules, which would apply exclusively to this particular case. It is impossible to use this method for adapting the whole system of the Islamic law to contemporary conditions.
The Muslim legal family does not recognise customs and judicial practice as sources of law.
To change the doctrine of the Islamic law, which has developed for centuries, is very difficult, so static nature is a characteristic feature of this family. Attempts to introduce innovations look suspicious; any original interpretation is prohibited.
Despite all the difficulties, the Islamic law is one of the largest systems, which regulates social relations involving more than 800 million people in different countries. Legislation of many world states contains the declaration that they adhere to principles of Islam. Such declarations are part of legislation in such countries as Morocco, Tunisia, Algeria, Iran, Pakistan and other countries.
It is important to notice that none of the states, even those with the strongest predominance of the Islamic law, is governed exclusively by it. Despite its incontestable status, all the countries complement the Islamic law with their own legislation and customs, which means that the Islamic law is not the only source of the country's law. The Islamic law pays special attention to family law, regulates ritual and religious behaviour. Unlike the above mentioned tradition-
al branches of law, such branches as constitutional, criminal and fiscal law are strongly affected by new trends, therefore, they are gradually moving away from the orthodox Islam.
Modernization of the Islamic law does not mean that it loses its original features. It rather means that it integrates Western principles expressed in categories and concepts with interpretation of traditional methods and approaches by leveraging European norms.
5. Other types of legal families. The ideologic legal family is really close to the religiously communal family, but unlike the latter, the ideologic legal family corresponds with the contemporary stage of the civilization development. This type of legal system is common for states with autocratic dictatory political regimes. Moreover, legal institutions, legislation and justice serve as a «curtain wall» aimed to cover violence of the regime, where legal components present an ideology-driven fraud.
The characteristic feature of this legal system is that there exists no independent justice, while the mainstream ideology consumes all others.
The legal systems of Scandinavian states are so specific that they do not fall into any of the above-described legal families. We will examine this group of legal families through the examples of Norway and the Netherlands.
The first signs of Norwegian legal practices appeared in the XII-th century. The King Magnus known as Magnus the Law-Mender, issued the Law of the Land (1274-1276), the first national code, which regulated such areas as the legal status of the church and established norms of the criminal, land and trade law. The Law of the Land was supplemented by the Law of the Cities (1276), which replaced local collections of city customs with national rules of commerce and navigation. In the territory of Norway both of these codified compilations of statutes mainly remained in force for several centuries, although in due course new laws replaced some of their provisions.
Along with legislation, customs are an important source of law, especially in the field of trade where they often play a certain role in legal regulation. Customs often serve as an essential addition to legislation in effect, also in what concerns the constitutional law. In the absence of relevant laws customs serve to regulate legal relations.
In the Norwegian law another major source of law is judicial precedents. Decisions made by the Supreme Court and sometimes by other judicial authorities for a particular case are basically held as a persuasive precedent. Thus, courts carefully study such precedents when they are to rule on some case, which involves similar legal matters. Herewith, the Supreme Court of Norway in its decisions does not aim to formulate unifying legal norms, instead it only provides the ruling relating to specific circumstances of the case under consideration.
The Norwegian law system also pays great attention to legal scholars work. It also views debates of bills, because the debates allow to reveal the legislator's «true intention» (quite often material of debating a bill are discussed as part of judicial pleadings when presenting a particular case).
The role of legislative acts, one more source of the Norwegian law, has been steadily increasing since the end of the 19th century. Lawmakers more and more often issue legislative acts regarding such matters that used to be governed exceptionally by customs or precedents.
In terms of its sources, the Norwegian law holds a unique position among various legal families, so it cannot be considered as part of either Anglo-Saxon or continental law systems.
Formation of main features of the modern legal system in the Netherlands began in the early 20th century. Along with legislative acts, customary law occupies a prominent position among the sources of law, especially in the sphere of civil, commercial and maritime law, which is fixed in relevant codes and laws. Decisions of the Supreme Court used to play a significant role in interpretation and application of general legal institutions, especially in the first period after the Civil Code of 1838 was put into execution. Decisions of the Supreme Court often filled gaps in the law, even though they were never officially recognised as sources of law.
The unique historical development in combination with above listed factors predetermined peculiarities of the legal system of each state. Any classification, including the one presented here, is relative by nature, since real diversity is infinite.
However, the considered examples allow us to conclude that such criteria as historical genesis, the legal system, and, of course, the hierarchy of sources of law in a certain country play a significant role for typology of legal systems.
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