What is a legal system
It is an operating set of legal institutions, procedures and rules regulating a given society From a law perspective: restricted to where the 'sovereign' commands different laws for different groups of the population From a non state perspective: includes the system of courts and judges supported by the state as well as non legal forms of normative ordering. Normative ordering - e.g. Written codes, security forces, tribunals etc which replicate the structure and symbolic form of state law. Informal/ no legal forms of normative ordering: process of establishing rules, securing compliance to rules, punishing the rule breakers
Legal system is a system coordinated, functioning whole made up of a set of intercalated, interacting parts. Solutions to specific legal problems requires an understanding of the lega system
How are the legal systems identified. Grouped
1. historical background and development
2. predominant and characteristic mode of thought in legal matters Especially distinctive
The kind of legal sources it acknowledges and the way it handles them it's ideology
two main secular legal systems are: common law and civil law;
The methodologies that the courts employ to create, elaborate and apply the substance of the law.
Legal method is a systematic body of knowledge generated by the law itself, defining its functions and ways in which it is applied Examples of legal systems
Religious, canon, islamic, Jewish
The law which English courts applied as developed through the principles of precedent without reference to legislation passed by parliament.
Historically from England, but note the key date of 1972, in view of changes from joining the European Community
Describing its nature
Centrality of the judiciary - their decisions constitute the written law ( maxims, precedents, reported decisions) that constantly need to be rationalized and developed into a coherent 'system' Buildup trough discussions and decisions of cases
Presumption that law is unwritten
Is common law a judge made law, not democratic?
Judgement is only evidence of an existing law, so judges do not make law - Commonwealth is a judge made law, judges are empowered by the executive - Austin Theoriical argument ( Dworkin) - chain process of finding and inventing law 1961 - an offense of conspiracy to corrupt public morals became a new offense.
Merits of Common Law
- Common law consists of a few broad and comprehensive principles founded on reason, natural justice and enlightened public policy.
- Infused with flexibility and adaptability
Demerits of Common law
- that the principles of law are difficult to ascertain , because they are embedded in numerous, often inconsistent decisions, and that great research and keen acumen are required to extract the rule of law. - That judge made law even if ascertained is to definite and certain, but is subject to change depending on who is sitting on the bench from time to time. - Good to be flexible, but may become guesswork to know how the court will decide; why not have a system that is certain.
Essentials of Common Law
- Essential to have a cause of action - a legally recognizable claim. - The court dealt with remedies, rather than with rules.
The Common Law Prcedure
Two stage procedure
- Stage one - legal issue
- Stage 2 - Proof of legal issue by expert and decide on the issue by jury via adversarial system - each side make their case in a public court through - oral argumentation, each side brings their witnesses, judge is a referee, judge ensures that that questions are relevant and method of cross examination is fair.... Limitations of remedies - only monetary compensation ( which jury could award) Additional remedies are now available like an injunction
Common law categorized into two:
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