1. LEGAL SYSTEMS
Legal system refers to a procedure or process for interpreting and
enforcing the law. It elaborates the rights and responsibilities in a variety
of ways. Three major legal systems of the world consist of civil law, common
law and religious law.
Jury system is a legal system for determining the facts at issue
in a law suit. Tax system is a legal system for assessing and collecting taxes.
Electoral system is a legal system for making democratic choices.
Legal systems vary from country to country, and sometimes within a
single country. Although they develop in different ways, legal systems also
have some similarities based on historically accepted justice ideals. Legal
systems do fall into groups or patterns with some similar features within each
group. Among the main groups that you might encounter are:
1) Common Law;
2) Civil Law;
3) Theocratic or Religious Law;
4) Customary Law; and
5) Mixed Law.
Many countries employ more than one of these systems at the same
time to create a hybrid or mixed system. In some places, the current security
situation can also impact the way that legal systems work.
1) Common Law Legal Systems
• The laws governing a case are based on both legal precedents,
created by judges, and statutory laws, created by legislatures;
• Usually an adversarial system, where the judge acts as an
impartial referee between opposing parties to a case;
• A jury may determine the facts, and a judge will decide the law
to be applied;
• There is an active role for prosecutors and defense attorneys;
• Victims have a role as witnesses and may have rights as a victim
to receive information and limited participation – however, victims are not a
party in criminal cases;
• The U.S. and the U.K. are examples of common law systems.
Common law was originally developed by judges through case-by-case
court decisions, rather than through legislation enacted by a legislature. In
this system, much of the law is made by judges’ decisions, called precedent.
This means that if a similar case has been resolved by a court in the past, a
court is bound to follow the reasoning used in the prior decision. While judges
are very important in common law systems, legislatures still have a part to
play. Common law systems also rely on statutes that are passed by the
legislature or a parliament, and judges have the role of interpreting how the
legislature’s laws are applied in individual cases. In common law legal
systems, legal proceedings are mostly adversarial, rather than inquisitorial.
This means that for the most part, two opposing parties (adversaries) appear
before a judge who moderates. Defendants are entitled to be present and to be
represented by a lawyer. The attorneys on both sides generally have an active
role in representing their clients throughout the case and in presenting
evidence and arguments in court. A jury of people without legal training can
decide the facts of the case, and if there is a conviction, then a judge
determines the appropriate sentence based on the jury’s verdict.
2) Civil Law Legal Systems
· Most of the law is statutory
law created by legislatures and not by judges following precedent;
· Usually an inquisitorial
system, where an investigating judge is actively involved in investigating the
facts of a case;
· Juries are rarely used; a
judge or panel of judges will decide the facts and the law to be applied;
· Prosecutors and defense
attorneys may play a more limited role;
· Victims may be parties and
have rights regarding their involvement, which may include having their own
attorneys and filing the initial charges;
· In many civil law systems,
victims may bring civil claims, e.g., for monetary damages, in the context of a
· Many European countries,
including France and Germany, and a number of North, Central and South American
countries, like Mexico and Brazil, are examples of civil law systems.
Civil law systems place greater emphasis on legal codes crafted by
the legislature. Civil law statutes tend to be more detailed than statutes
under common law systems, and contain continuously updated legal codes that
specify all matters capable of being brought before a court, the procedure to
be followed, and the appropriate punishment. Civil law systems rely less on
judges and more on academic legal experts to make legal interpretations. In a
civil law system, the judge’s role is to establish the facts of the case and to
analyze and apply the legislature’s written laws. Because of this, legislators
and legal scholars who draft and interpret the codes are important in civil law
legal systems. The role of judges is different in civil law systems compared to
common law systems. There are two types of judges in a civil law system: an
investigating judge (or magistrate) and trial or sitting judges. Civil law
systems are based on the belief that justice is best served when a judge is an
active participant in investigating the facts of the case, thus the
investigating judge or magistrate will typically lead the investigation. Unlike
common law systems, which focus on the trial to determine the facts, civil law
legal systems mostly focus on pre-trial investigation and hearings to establish
the facts. The actual trials can be relatively brief and informal because the
trial judge will review the case file developed by an investigating judge.
During trial, witnesses are generally allowed to give additional kinds of
evidence and the defendant often gives a statement. Cross examination is rare.
3) Theocratic Law Legal System
This system is based on religious teachings, as
they are enshrined in the religious scriptures. Islamic law, Shariat, is the
most widely practiced religious legal system in today’s world. It is based on
morality rather than commercial requirement of human behaviour in all aspects
of a person’s self and social life. Islamic law is based on the Holy book of
Islam, the Quran and on interpretation of the practices and sayings of Prophet Mohammad.
It also follows the writings of scholars and
teachers of Islamic scholarship, who derived rules by analogy from the
principles established in the holy Quran. The basic foundations of Islamic law
remain unaltered even after many centuries because they have been derived from
the holy book and are acceptable to all devout Muslims.
Even though Islamic jurists and scholars
constantly debate the application of Islamic law to the modern world, their
debates are only scholastic deliberations. However, to keep pace with the
advancement of life, many Muslim countries have a blend of Common law and Civil
law system along with the Shariat law.
4) Customary Law Legal
They are based on patterns of behavior (or
customs) that have come to be accepted as legal requirements or rules of
conduct within a particular country. The laws of customary legal systems
are usually unwritten and are often dispensed by elders, passed down through
generations. As such, customary law research depends greatly on the use of
secondary sources. Of ten times, customary law practices can be found in
mixed legal system jurisdictions, where they’ve combined with civil or common
Customary law is rooted in the customs of a
community. Common attributes of customary legal systems are that customs may be
unwritten, customs govern social relations, and customs are widely accepted by
the community’s members. Customary law systems are found in Africa, the Pacific
Islands, and elsewhere.
5) Mixed Law Legal Systems
A mixed legal system is one in which the
law in force is derived from more than one legal tradition or legal family. For
example, in the Quebec legal system, the basic private law is derived partly
from the civil law tradition and partly from the common law tradition. Another
example is the Egyptian legal system, in which the basic private law is derived
partly from the civil law tradition and partly from Moslem or other
religiously-based legal traditions.
2. JURISPRUDENCE DEFINED
The word jurisprudence derives from the Latin term “juris
prudentia”, which means “the study, knowledge, philosophy or science of
law.” Legal philosophy has many aspects, but four of them are the most common:
- The first and the
most prevalent form of jurisprudence seeks to analyze, explain, classify,
and criticize entire bodies of law. Law school textbooks and legal
encyclopedias represent this type of scholarship.
- The second type of
jurisprudence compares and contrasts law with other fields of knowledge
such as literature, economics, religion, and the social sciences.
- The third type of
jurisprudence seeks to reveal the historical, moral, and cultural basis of
a particular legal concept.
- The fourth body of
jurisprudence focuses on finding the answer to such abstract questions as “What
is law?” and “How do judges (properly) decide cases?”
1) Definition By Famous Jurists
He is known as Father of Jurisprudence
and was the first one to analyze what is law. He divided his study into two
- Examination of Law ‘as it is’
i.e. Expositorial Approach– Command of Sovereign.
- Examination of Law ‘as it
ought to be’ i.e. Censorial Approach– Morality of Law.
The Roman Jurist, Ulpian, defined
Jurisprudence as “The observation of things human and dive, the knowledge of
just and unjust.”
Jurisprudence as the “Science of the first principles of civil law”. In
Salmond’s point of view, Jurisprudence thus deals with civil law or the law of
Austin defines Jurisprudence as the
Philosophy of Positive Law.
The term ‘positive law’ connotes ‘jus
positivum’ which means law lay down by a political superior for commanding
obedience from his subjects.
He described Jurisprudence as “the science of law using the term ‘law’ in the juridical
senseas denoting the body of principles recognized or enforced by public and regular tribunals in the Administration of Justice.”
Holland defines Jurisprudence as “The
Formal Science of Positive Law”. He says “Jurisprudence deals with the human
relations which are governed by rules of law rather than with the material
3. BENEFITS OF JURISPRUDENCE
Jurisprudence is basically a
theoretical subject but it also has a practical and educational value. The
practical value or purposes of jurisprudence has been enumerated as under.
REMOVE THE COMPLEXITIES OF LAW:
One of the tasks of jurisprudence
is to construct concepts and make law more manageable and rational.
ANSWER THE NEW PROBLEMS:
Jurisprudence can teach people to
look around them and realize that answers to legal problems must be found by a
consideration of the present social needs and not in the wisdom of the past.
GRAMMER OF LAW:
Jurisprudence is the grammar of
law. It throws light on the basic ideas and the fundamental principles of law
e.g. negligence, liability etc.
TRAINING OF MIND:
Jurisprudence trains the mind to solve the difficult legal provisions in legal way.
GRASP ON THE SUBJECT:
It helps in knowing and grasping
the language, grammar, the basics of treatment and assumption upon which
USEFUL IN ART OF PLEADING AND LEGISLATION:
It helps legislators and the
lawyers the proper use of legal terminology. It relieves them of the
botheration, creation of defining again and again certain expressions e.g.
right, duty etc.
TO INTERPRET LAW:
It helps the judges and the lawyers
in ascertaining the true meanings of the law passed by the legislatures by
providing the rules of interpretation.
TO STUDY FOREIGN LAW:
It enables a lawyer to study
foreign law because the fundamental principles are generally common to all
systems of law.
4. SCHOOLS OF JURISPRUDENCE
There has been a sharp cleavage between different
schools of jurisprudence or the science of law. Each school looks at it from
its own point of view and lays emphasis upon some sources of law and its
The different schools of jurisprudence may be summarised as below:
1. Natural Law or Philosophical School;
2. Analytical School of Analytical Positivism;
3. Historical School:
(a) Anthropological Approach; and
(b) Economic Approach;
4. Sociological School;
5. Realist School:
(a) American Realists;
6. Comparative School
1) Natural Law or Philosophical School
philosophical or natural or ethical school concerns itself chiefly with the
relation of law to certain ideals which law is meant to achieve. It seeks to
investigate the purpose for which a particular law has been enacted. It is not
concerned with its historical or intellectual content.The notable
jurists of this school are Grotius (1583-1645), Immanuel Kant (1724-1804) and
Hegel (1770-1831). These jurists regard law neither as the arbitrary
command of a ruler nor as the creation of historical necessity. To them, the law
is the product of human reason and its purpose is to elevate and ennoble human
personality. Grotius used natural law as
the foundation of a new international law to regulate the affairs and warfare
of the rising national states.
2) Analytical School or Analytical Positivism
The chief exponents of
the Analytical school of Jurisprudence were Bentham and Austin.
It is also called the positivist school of jurisprudence because it considers
law as it is and not as it ought to be. In fact, it was Sir Henry Maine who
coined the word ‘analytical’. This school is also called imperative school
because it treats law as a command of the sovereign. Bentham introduced legal
positivism and treated legal theory as a science of investigation which should
be approached through the scientific method of experimenting and reasoning.
John Austin is the father of Analytical School. Austin said that only
positive law is the subject matter of jurisprudence. He separated both the
morals and the religion from the definition of the law. Prior to Austin, the
law was based upon customs and morals but Austin reduced all things from the
definition of law.
This viewpoint is based on two principles.
- Law is the command of the sovereign.
- Force is the essence of law. (i.e. what cannot be enforced is not a law)
This theory was bitterly criticized
in the 19th century by the Pluralists and the sociological
jurists. Despite its shortcoming, this theory has explained a lot about the
law. The analytical school of jurisprudence provides that law must be made by
the state in the interest of general welfare. It favors codification of law and
regards the law as a command with legal sanction behind it.
3) Historical School
jurisprudence examines the manner or growth of legal system, and traces the growth
of law from origin with a view to finding out the origin of our legal concepts
and the general course of their evolution. It deals with the general principles
governing the origin and development of law as also the origin and development
of legal conceptions and principles found in the philosophy If law.
According to this theory, the
law is the product of the forces and influence of the past. Law is
based on the general consciousness of people. The consciousness started
from the very beginning of the society. There was no person like
sovereign for the creation of law. Savigny, Sir Henry Maine and Edmund Burke
are the renowned jurists of this school.
is regarded as the founder of the
historical school. He has given the Volksgeist theory. According to this
theory, the law is based upon the general will or free will of common people.
He says that law grows with the growth of Nations increases with it and dies
with the dissolution of the nations. In this way law is a national character.
The consciousness of people.
theory has some defects. Being conservative in its outlook it relies on past;
however, its merit is that it shows that law must change with the changes in
society. It clearly believes that if a law is not according to the will of the
people, it will never be obeyed. In this way, it supplemented the analytical
school of law.
4) Sociological School
According to sociological school, the common
field of study of the jurist is the effect of law and society on each other.
This approach takes law as an instrument of social progress. August Comte
pleaded for the scientific method to the science of sociology.
The sociological school of
jurisprudence emerged as the synthesis of various juristic thoughts. The
exponents of this school treat law as a social phenomenon. According to them,
the law is a social function, an expression of human society concerning the
external relations of its individual members. Montesquieu, Auguste
Comte, Herbert Spencer, Duguit and Rosco Pound are the notable jurists of this
August Comte (1798-1881) first invented the term
‘sociology’ and his method is termed as ‘scientific positivism’. He pleaded for
the application of scientific method to the science of sociology. Come
subsequently digressed himself from his strict scientific approach and laid
down that mankind inevitably passed through three stages, viz., the
theological, the metaphysical and the scientific or positive. He formulated an
authoritarian conception of the character of ‘positive society’.
Herbert Spencer (1820-1903) propounded a
scientific exposition of the organic theory of society. According to him the
slate existed only to further individual freedom, while Comte favored highly
collectivist programme. The laissez faire, an economic theory and a philosophy
of action in social affairs, derived strength from Spencer’s philosophy of
applying the organic evolutionary idea in relation to it.
Inhering (1818-1892) observed, “Everybody exists
for the world” and “the world exists for everybody.” Weber (1864-1920) by his
sociological studies of legal institutions as produced by economic and social
conditions-also influenced legal thought.
In their opinion, the general interest includes
protection of the social order against individuals who are beyond the pale of
society. This protection may be affected by means of a part of the criminal
law, police law, and procedural law.
In reality all of this is a matter of the
distribution of power. A decision rendered for the protection of general
interest may be said to be a decision based solely upon, consideration of
experience. Whether there is no doubt as to where the power plays in a state or
where the voice of popular consciousness speaks no uncertain tones the task of
jurist is a merely technical one.
5) Realist School
The realist movement, which prefers not to be
called a school, is a branch of sociological school. Its studies law as it is
in its actual working and effects. It has been summed up by its exponent,
Professor K. Llewellyn as ‘ferment’.
The prominent jurists of this
thought are Holmes, Gray and Jerome Frank.
Allen observes that ‘fermentation is necessary
in legal chemistry for without it the liquor of” the law becomes sour and
stale. Grown out of its youthful exuberances and disabused of its hasty
conclusion that law is to be found only in facts and deeds, this movement
brings to modern jurisprudence a spirit of vigilance and exploration which is
capable in the right hands of contributing substantially to the understanding
of law not as a bloodless abstraction but as a living force in society.
(a) American Realism:
Allen observes that the main trend of the
American realist movement has been to call in question legal certainty to
attack what he called conceptualism, and to emphasize those many influences
which produce accidents of litigation through the variable elements of forensic
method and especially of judicial technique. Mr. Justice Holmes played an
important role in bringing about a changed attitude to law. “The prophecies of
what the courts will do in fact, and nothing more pretentious, are what I mean
by the law.”
The basic approach of the American Realist
Movement in Law was more philosophical and abstract as compared to the basic
tenets of realism.
(b) The Scandinavian Realism:
The Scandinavian jurists associated with the
realist movement have put forth a philosophical justification of their
positivist outlook while eliminating all metaphysics. They are in line with
the empirical traditions in English philosophy and jurisprudence and having
affinities to the sociological approach which has gained influence in England.
Hager storm, the spiritual father of the
movement, rejected the idea of objective value and placed for an examination of
the actual use of the legal concepts and an analysis of the mental attitude
involved in the conception of law in present times.
It is impossible to maintain that law in a
realistic sense is guaranteed or protected by force. The real situation is
that law-the body of rules summed up as law-consists chiefly of rules about
force, rules, which contain patterns of conduct for the exercise of force.
6) Comparative School
“Comparative Jurisprudence”, observes Professor
Kelton, considers the development of two or more systems of law. The term has
more than one meaning, however. The science may have for its object the
discovery of these legal rules which are common to the legal systems studied;
or again, it may discuss those relations of individuals which have legal
consequences, together with an inquiry how those relations and expression in
the legal systems considered.
More frequently, Comparative Jurisprudence
selects various legal topics, and explains fully their method of treatment in
two or more systems of law, seeking thereby to draw conclusions respecting the
merits of the two methods of treatment adopted in the legal systems.”
According to Guttridge, the use of the phrase
“Comparative Jurisprudence” is an expression of the belief that the main
purpose of the comparative methods of study is to aid the historical or the
analytical jurist in tracing the origin and development of concepts common to
all systems of law.