The Meaning of Legal System

Private law is the common term for the broad field that deals with legal relations between people. It deals with pure status issues (marriage, divorce, kinship, etc.); matters concerning property of any kind (property, estates, contracts); and commercial activities in the broad sense. Its essential feature is that participants are considered legally equal (unlike the public law structure, in which relationships are hierarchical), so that one cannot give orders to the other, unless this is permitted by a previous contractual or family agreement. Private law serves to reduce the cost of legal transactions by providing a set of models that citizens can use if they wish. However, private parties are also free to modify these templates (i.e. to modify a contract before it is signed). For more information about legal systems, see this article from Florida State Law Review, this article from the University of Berkeley Law Review, and this article from the Louisiana State University Law Review. Scotland, Louisiana, Mauritius and Quebec are examples of private law based on older civil and customary rules (not codified in Scotland) that persist in a common law environment. Israel has its own system, in which the former Ottoman and British mandates are now supplanted by a modern system. It does not have a single constitutional document, but much of modern law combines the great legislative simplicity of the main civil codes with the careful transparency of the common law judgment. Most modern legal systems can be described as either common law, civil law, or a mixture of both. Although the length of constitutions varies considerably, most details are usually devoted to the legislative and executive branches and the relationship between them. Federal systems, of course, have bicameral legislation.

But also many unitary systems, where the House of Commons is directly elected and the House of Lords is composed of those who can represent rural interests (France) or have particular competences (Ireland). In most countries (but not in the United States), the House of Commons can ultimately override the House of Lords. A system of pure customary law is created by the judiciary, since the law derives from case law and not from the law. Therefore, a common law system places a strong emphasis on judicial precedent. However, a purely civil law system is governed by statutes and not by case law. This chapter develops a working definition of the law and legal system that is used throughout the book. The law is the set of rules and regulations applied by the government. However, formal law is only one part of a larger legal system that encompasses the structures, substance, and culture that bring law to life in books.

Together, the law and the legal system function both as a method of social control and as a means of settling disputes. The final part of the chapter situates the American legal system within the broader realm of civil law and the common law system around the world. A complete list of legal terms and definitions that every lawyer, paralegal and law student should be aware of. A legal system is a procedure or procedure for interpreting and applying the law. A common method is to require a special majority in the legislature – two-thirds in Germany, three-fifths in France, with similar systems in India and other Commonwealth countries (and this was the case in the Soviet bloc). Another parliamentary alternative is to ask for a second vote (Italy, Denmark, Finland). Finally, some systems divide the power of amendment between legislators and citizens by requiring a referendum either for certain types or methods of change (Denmark, France, Ireland) or for each (Japan). As a general rule, there are few generalizations that can be made between different constitutions. First, constitutions seek to regulate the division of powers, functions and duties among various agencies and government officials, and to define the relationship between them and the public. Second, no constitution, no matter how good, can protect a political system from effective usurpation.

Third, those in power in many countries are more or less completely ignorant of the constitution. Fourth, even when constitutions do, none is complete: each operates within a matrix of compromises, customary laws or jurisprudence. Fifth, most begin by identifying (at least on paper) the constituent authority (as « the people ») and often invoke the deity (i.e., Canada, Germany, Greece, Ireland, Pakistan, Switzerland). Sixth, as a rule, they separate the legislative, executive and judicial organs of the State. Seventh, they usually contain or incorporate a bill of rights. Eighth, they often provide a method of repealing laws and other unconstitutional instruments, including the Bill of Rights. Ninth, they approach the international scene only in general terms and in practice confer extensive powers on the (federal) executive. Finally, they deal with the status of international law, either by giving it direct internal effect or by denying it.

Two common patterns are that of the presidential system and that of the parliamentary system. The former merges ceremonial and political power into a single office, with its holder elected directly and completely separately from the legislature: it is therefore quite possible (and common in the United States) for the president of one party and a majority of the legislature to belong to another party. It separates the executive and legislative powers, so neither institution can dissolve the other: the president is impeached only for serious crimes in which the legislature acts as a court. The president appoints ministers for confirmation by the legislature, but there is no collective responsibility of cabinet. The president usually has veto power over laws, which can only be overridden by a special parliamentary majority. On the other hand, the decisive power of taxation lies with the legislator. Private law defines who is considered to have legal capacity and deals with their legal capacity (for the protection of the very young or mentally ill). These natural persons may create other « artificial » legal entities such as associations, foundations and companies. The first group includes countries whose « mixed » system is influenced by both civil and common law.

The old uncodified civil law of Holland is the basis of the Roman-Dutch law of South Africa, Zambia, Namibia, Lesotho, Swaziland, Botswana and Sri Lanka; it is characterized by a rich legal literature dating back to Hugo Grotius (de Groot) in the 17th century. But their long contacts with Britain mean that their public law and legal proceedings owe much to the common law. But despite this great diversity, it is important to first emphasize the separation between religious and secular legal systems. Everyone has very different views on the law, in terms of source, scope, sanctions and function.