46 The essence of law and the nature of international law
to the Declaration, the General Assembly ‘solemnly’ proclaimed ‘that the peoples of our planet have a sacred right to peace’ and ‘that the preservation of the right of peoples to peace and the promotion of its implementation constitute a fundamental obligation of each State’. Hence, the UN General Assembly announced the start of a new era in which peace should be envisioned as a right. ‘Consequently, the step has been taken from an abstract philosophical ideal to a more concrete political-legal principle.’94
CASES AND MATERIALS (SELECTED PARTS) Legal families Rene David and John E. C. Brierley, Major Legal Systems in the World Today (3rd edn, Stevens & Sons 1985) 22–36.
‘18. Romano-Germanic family A first family may be called the Romano-Germanic family. This group includes those countries in which legal science has developed on the basis of Roman jus civile. Here the rules of law are conceived as rules of conduct intimately linked to ideas of justice and morality. To ascertain and formulate these rules falls principally to legal scholars who, absorbed by this task of enunciating the “doctrine” on an aspect of the law, are somewhat less interested in its actual administration and practical application. These matters are the responsibility of the administration and legal practitioners. Another feature of this family is that the law has evolved, primarily for historical reasons, as an essentially private law, as a means of regulating the private relationships between individual citizens; other branches of law were developed later, but less perfectly, according to the principles of the “civil law” which today still remains the main branch of legal science, Since the nineteenth century, a distinctive feature of the family has been the fact that its various member countries have attached special importance to enacted legislation in the form of “codes”.’
‘19. Common law family A second family is that of the Common law, including the law of England and those laws modelled on English law. The Common Law, altogether different in its characteristics from the Romano-Germanic family, was formed primarily by judges who had to resolve specific disputes. Today it still bears striking traces of its origins. The Common law legal rule is one which seeks to provide the solution to a trial rather than to formulate a general rule of conduct for the future. It is then much less abstract than the characteristic legal rule of the Romano-Germanic family. Matters relating to the administration of justice, procedure, evidence and execution of judgments have, for Common law lawyers, an importance equal, or even superior, to substantive legal rules because, historically, their immediate pre-occupation has been to re-establish peace rather than articulate a moral basis for the social order. Finally, the origins of the Common law are linked to royal power. It was developed as a system in those cases where the peace of the English kingdom was threatened, or when some other important consideration required, or 94 Tehindrazanarivelo and Kolb (n 92).
