Chapter 1. Introduction to Legal Systems

• Pages: 1-35

CHAPTER1

INTRODUCTION TO LEGAL SYSTEMS

THE RULE OFLAW

Law is a social phenomenon. It has grown into an essential principle of social organisation in

Western civilisations as a result of the historicity of those societies.1 Law functions as the formal

machinery for creating and maintaining social order, as seen in the Western world. All socie-

ties possess some degree of order which allows for sustained social interaction within a period

of time. The form of order which exists depends on the particular society and the perceived

needs of that society. Political, historical and moral characteristics of a society also assist in

shaping that form of order. According to Sinha, law is a composite of three components:

rules of law (mental), attitudes (psychological) and external aspects (behaviour). It is these three

components which shape law in any given society; however, the question begs itself, how does

law maintain social order? Law prescribes what acceptable social conduct for any given society

Reproduced with the permission of Stu’sViews

1 Sinha, SP, What is Law?: The Diering Theories of Jurisprudence, 1989, New York: Paragon House, p218.

2Commonwealth Caribbean BusinessLaw

2 Bridge, J, ‘Values, Principles and Standards in the Public Law of the United Kingdom’. Delivered at New-

castle Law School Sta Seminar, 23 May2000.

3 See De Smith, S and Brazier, R, Constitutional and Administrative Law, 1998, London: Penguin Books, p17.

4 See generally Slapper, G and Kelly, D, The English Legal System, 2000, London: Cavendish Publishing Limited,

pp 14–19.

is and punishes deviant behaviour which results in conflict or disorder. There are established

institutions and procedures through which the law operates in civil and criminal issues to return

a society to its status quo of social normalcy.

The constitutional and administrative law of the United Kingdom has long respected a

number of values, many of which are encapsulated in the concept of the rule of law: checks

against arbitrary power; democracy through universal surage and regular elections; rep-

resentative and accountable government; individual freedom; fair procedures; and judicial

independence.2 The intricately woven interrelationship between government and the law is

reflected in the concepts postulated by the rule of law. The notion itself is fluid and lends

itself to a wide range of interpretations. Despite the inability to propose a concrete defini-

tion for the concept, it is accepted that central to the general idea of the rule of law is the

specific proposition that it involves the rule of law as opposed to the rule of people to control

the exercise of arbitrary power. It can be said that it is usually intended to imply that the

powers exercised by politicians and ocials must be based on authority conferred by law and

that the law should conform to certain minimum standards of justice, both procedural and

substantive.3 This is why the actions and decisions of those whose authority is conferred by

law can be subject to judicial review proceedings. Politicians and government ocials should,

therefore, ordinarily be minded not to abuse the discretionary powers associated with the

oce that theyhold.

The concept of the rule of law versus the rule of people is most significantly reflected in the

stated role of judges. Their position is such that they are expected to deliver completely impar-

tial judgments through a strict application (and sometimes interpretation) of the law without

fear or favour; neither are they expected to allow personal preferences or beliefs to influence

decisions taken.

Legal philosophers on the topic of the rule of law abound. At this juncture, three shall be

highlighted: AV Dicey, EP Thompson and Joseph Raz.4

Dicey was a theorist on the right of the political spectrum and was of the view that the

rule of law constituted a key distinguishing feature of the English constitution, where this was

absent in the constitutions of continental Europe. For Dicey, there were three elements which

comprised the rule oflaw:

• An absence of arbitrary power exercised by the state. The discretionary powers exercised

by the state were subject to the boundaries set by laws which sought to control the abuse of

such powers.

• Equality before the law. No one was above the law, regardless of social class orrank.

• Supremacy of ordinary law. This is based on the fact that the English constitution was the

result of the ordinary law of the land and based on the provision of remedies by the court

as opposed to a declaration of rights in the form of a written constitution.

Dicey wrote from a historico-political period where the maintenance of individual prop-

erty and individual freedom to use that property was vital. Following from this, he believed that

everyone should be treated as possessors of abstract rights and duties in the eyes of the law and

the state, despite their wealth or power.

3Chapter1: Introduction to Legal Systems

5 Slapper and Kelly, The English Legal System, pp 18–19.

EP Thompson, a Marxist historian on the left of the political spectrum, saw the rule of

law as protection against, as well as being under attack from, the encroaching power of the

modern state. Thompson believed that the state used its control over the legislative process in

order to undermine civil liberties in the pursuit of what it considered to be the public interest.

He argued that the core meaning of the rule of law is not simply procedural propriety but also

the manner and extent to which it limits the exercise of state power.

Joseph Raz suggested that the pursuit of social goals practically required the enactment

of general laws as well as particular laws. This goes against the German notion of Rechtsstaat

where the state is subordinate to the law and, as such, is required only to institute general laws

and cannot make laws aimed at particular people. According to Raz, the wider idea of the rule

of law emerges from the requirement that the law must be capable of guiding the individual’s

behaviour. From this general idea, the most important principles for Raz are as follows:

• Laws should be prospective rather than retroactive. People cannot be guided by or expected

to obey laws which have not as yet been introduced. Laws should also be open and clear to

enable people to understand them and guide their actions in line withthem.

• Laws should be stable and should not be changed too frequently, as this might lead to con-

fusion as to what was actually covered by thelaw.

• There should be clear rules and procedures for makinglaw.

• The independence of the judiciary has to be guaranteed to ensure that it is free to decide

cases in line with the law and not in response to any external pressure.

• The principles of natural justice should be observed, requiring an open and fair hearing to

be given to all parties to proceedings.

• The courts should have the power to review the way in which the other principles are

implemented to ensure that they are being operated as demanded by the rule oflaw.

• The courts should be easily accessible as they remain at the heart of the idea of making

discretion subject to legal control.

• The discretion of the crime-preventing agencies should not be allowed to pervert the law.5

LEGAL TRADITIONS OR FAMILIES

Textbooks on legal traditions generally cite the existence of three highly influential legal tra-

ditions: civil law, common law and socialist law. Such traditions are not necessarily mutually

exclusive. They are of particular interest as they came from some of the most powerful and

technologically advanced nations of the world and have been adopted, to a greater or lesser

extent, in other regions of the world. From these varying types, legal systems evolved, which

include religious law, customary law and mixed law systems.

It is necessary to dierentiate between the term ‘legal tradition’ and ‘legal system’. While

these terms are sometimes used interchangeably, they are most certainly not synonymous. Alegal

tradition refers to a set of deeply rooted, historically conditioned attitudes about the nature of

law; the role that law plays in society; the proper organisation and operation of a legal system;

and the way that law is or should be made, applied, studied and taught. The style of a legal tra-

dition is influenced by factors such as its historical development and background; predominant

and characteristic mode of thought in legal matters, especially distinctive institutions; acknowl-

edged legal sources; and ideological epistemologies. The legal tradition puts the legal system into