Magazine article UNESCO Courier

A World's Eye View of the Law

Magazine article UNESCO Courier

A World's Eye View of the Law

Article excerpt

A variety of different legal systems and traditions grew up over many centuries. Some were exported far and wide. Now there are signs that they are starting to converge.

Civil law: Inspired by Roman law. Legislation is the primary source of law. Civil codes are the centrepiece of the legal framework and the foundation of all other laws which complement or make exceptions to it. The codes are mainly characterized by a high level of abstraction which enables the judge to interpret and analyse situations either by applying the legislation or by extrapolating from the overall framework. France is a prototypical civil law nation. Over 60% of the world population is influenced by this tradition.

Common law: Derived from English unwritten law that evolved from the 12th century onward. Known as "judge-made law". Jurisprudence is the primary source of law. Developed through an inductive approach, legal concepts emerge and progress over time, constructed by an amalgamation of numerous cases that bring together the legal scope of these concepts. Common law prevails in the United Kingdom, the U.S.A. and most Commonwealth countries, influencing over 30% of the world population.

Islamic law: Controlled, ruled and regulated by the Islamic religion and followed by over 20% of the world population. Its main source is the holy book, the Koran, complemented by the Sunna - limited interpretation of the Koran by the prophet. This legal methodology is known as Shariah (the way to follow). The sacred law purports to regulate all aspects of society and its citizens. One unique characteristic of Islamic law is the precedence of collective rights over individual rights. Individual rights and freedoms are restricted by the religion's moral and divine imperatives. Recent developments have favoured an extensive interpretation of the moral rules to adapt to the new reality of the 21st century.

Mixed systems. They include two or more legal methods used concurrently or interactively in a multi-cultural or multi-religious society. The legal systems of many North African and Middle Eastern countries are strongly influenced by the civil law tradition, but in some areas, especially those relating to personal status, family matters and property law, these countries tend to follow Islamic tradition.

Customary law: Body of usage and customs that have, through time, acquired force of law. There are many expressions of customary law, which can be developed notably through religion, race or cultural identity. It plays an important role in a relatively large number of mixed law countries and, over time, many of these nations tend to implement their "customary laws" in a code. Justice can be delivered in many ways adapted to local traditions.

Legal systems in former Soviet Union and Eastern Europe. The vast majority of these countries were part of the civilist legal tradition prior to the 1917 revolution or postwar changes. Following those events, parts of their codes were invalidated to accommodate communist ideology, and their civil codes were never fully abrogated between 1917-1991. Since 1991, Russia and other East European countries have been undergoing important reforms to adapt to globalization, while remaining true to their civilist roots.

Impact of globalization: Legal systems have become, in certain areas, barriers to the development of world trade. Hence, in the last 50 years, the rise of international institutions which promote the harmonization of laws and try to minimize the effects of "transystemic legal barriers". International trade is the driving force in the development of a jus commune that will transcend and coexist with traditional legal systems.

Prepared with the assistance of the Faculty of Law, University of Ottawa, and David J. Shaw, attorney at law, Utah (USA)

Landmarks in legal history

* 2350 BC: Urukagina's Code

This code has never been discovered but it is mentioned in other documents as a consolidation of "ordinances" or laws laid down by Mesopotamian kings. …

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