Topic 2 - Legal Systems and Classifications of Law

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rahvatervis

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Sherjeel Khan How Historic Legal Systems have Influenced Canadian

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considerable exchange of personnelespecially at higher level in both Public andPrivate sector.

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The Civil Rights Movement

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Topic 2 - Legal Systems and Classifications of Law

(Hisrorical) secular, as opposed to Canon or ecclesiastical law

Relating to private litigation or action

Legal system, derived from Roman law

(England) law rather than Equity

No counterpart in Scots law

However Court of Session's power of nobile officium

Equity administered by Court of Chancery. Provision of discretionary equitable remedies where ordinary courts could not give a remedy

Case law

Type of Legal system, derived from English law

Court Processes

Tribunals

Public and private legal areas

Lesser form of judicial decision making

More inquisitorial approach

Speed

Cheaper

Informality

Expertise

Judicial review

Was process to arrive at decision lawful?

Criminal

Malum in se/Malum prohibitum

Finding of guilt

Beyond reasonable doubt

State taking action against individual

Limited scope for private prosecution

Crown office - procurators fiscal, Lord Advocate

Civil

Finding of liability

Balance of probabilities

Pursuer and defender

Disputes within private law

Classifications of Laws

Walker ch 5

Private

Relationship between individuals

Delict

Property

Contract

Commercial

Company

Family

Sucession and Trusts

Public

Relationship between individuals and state

Examples

Public International Law

Revenue

Constitutional

Administrative

Criminal

Roman law

Ius naturale

Nature and morality

Ius gentium

Foreigners

Ius civile

Amongst citizens

Law of actions

Law of property

Law of persons

Scots Law

Drawn from civilian and common law traditions - mixed legal system.

Tb Smith English influences on the law of Scotland (1954) 3 am j of comparative law 522

Cross fertilisation

Scottish influence eg negligence

Civil law

Delict

Tort in England - made up of many individual causes of action.

Liability dependant on identifying correct tort.

Wrong choice, no remedy.

Bringing case into the circumstances held to be necessary to establish tort.

Examples

Trespass

Person

Chattels

Land

Assault

Battery

False imprisonment

Defamation

Roman law principle - defender must make reparation for the wrongful loss

Common law

Commercial law

Classification of Legal Systems

Legal Families

Socialist

Religious

Canon

Jewish

Based on religious text

Islamic

Difficulties in import and export of rules

Possible to learn from other jurisdictions

Comparative law

Desire to harmonise law across Europe

Relationship between jurisdictions in same legal family

Common Law

The common and the civil law - a scot's view (1950) 63 harv lr 468, heinnonline

Detailed rules

Taught via observation /apprenticeship

Historically based on remedies

Emphasis on past decisons

Eventual deduction of principles from body of past cases

Common factors identified

Inductive reasoning

Recording of judgements

Stare decisis

Piecemeal

Adversarial

Parties responsible for putting forth facts and legal arguments

US

Commonwealth

Civil Law

EU based on civilian tradition.

Civil influence on UK

Significant influence on Public International Law

Inquisitorial

Judicial investigation of facts

Based on general principles

Laws often set out in systematic codes

Rights and duties implied/derived

Deductive reasoning

Derived from Roman law

Traditiolly taught in universities

Organised by lecturers to be systematicsystematic and comprehensive

Discovery of Corpus Juris at University of Bologna

Europe

Exported

Spanish /Portuguese

South America

French

North America

Quebec

Only Civil law jurisdiction in Canada

Louisiana

Dutch

South Africa

Content and structure vary between states.

Restrictions on right to practice

Legal qualifications not generally transferable

Morality/needs of society

Differing standards of legality, eg chewing gum in Singapore