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Legal systems
The particular angle of the general notion of law presented in this book
This book defnes the general notion of law primarily with an emphasis on the formal characteristics of law and mainly with the purpose of highlighting the specifcs of international law.
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There are many theoretical models which aim to defne the system of rules known as international law. Some of these explanations are outlined in this book, with the intention of making the essence of international law easy to grasp for a would-be reader.
To introspect into the peculiarities of international law, it is necessary to have a clear picture of the following starting points in mind:
1 The law is composed of two legal systems – national law (also referred to as the municipal law, domestic law, or internal law) and international law (also referred to as public international law). 2 As regards national law, it has different appearance in different countries. 3 Although there can be no simple answer to the question ‘What is law?’ nevertheless, there are some common characteristics of law that unite the law in all its forms, distinguishing it from other normative phenomena.
legal systems legal families civil law family common law family customary law family religious law family mixed national legal systems family precedents
Diversity of the legal systems
As noted earlier, legal systems exist in the form of either national law (encompassing independent national legal systems of the states) or international law. The national law, in its turn, according to the widely recognised generalisation, is made up today of f ve legal families.
1
1 For instance, it is named by Rene David as the family of laws or legal families: ‘[T]he Romano-Germanic family, the Common law family and the family of Socialist law.These three groups, whatever their merits
Legal families
• Civil law family • Common law family • Customary law family • Religious law family • Mixed national legal systems family
Civil law family
The civil law family stems mainly from Roman law heritage. Its examples vary considerably from country to country. Nevertheless, they also display some shared characteristics. In the civil law family states, the ethos of the positive general rules prevails, manifested primarily in the form of the comprehensive legal codes. In these countries, the law is substantially constituted by the legislature (though other state organs which are empowered to introduce the secondary legislation also participate in the law-making process). At the same time, case law is of secondary importance in these jurisdictions. Germany, France, Italy, and Georgia are examples of countries with a civil law system.
Common law family
The nations of the common law family rather tend to abandon the ethos of generalisation and major codifcation; in parallel with the statutes, they rely on precedents (which are certain judicial decisions that have already been made).2 Hence, the law in such countries is to a considerable degree developed by judges moderating between the adversarial parties. The United Kingdom (except Scots law, which on the whole has a mix of the characteristics of the civil law and common law families), Ireland, and the United States (except Louisiana, which also combines elements of both the civil and common law families) represent the common law family.
and whatever their extension throughout the world, do not however take into account all contemporary legal phenomena.’ Rene David and John E. C. Brierley, Major Legal Systems in the World Today (3rd edn,
Stevens & Sons 1985) 22. 2 ‘In English law, judgments and decisions can represent authoritative precedent (which is generally binding and must be followed) or persuasive precedent (which need not be followed). It is that part of the judgment that represents the legal reasoning (or *ratio decidendi) of a case that is binding, but only if the legal reasoning is from a superior court and, in general, from the same court in an earlier case. Accordingly, ratio decidendis of the *House of Lords are binding upon the *Court of Appeal and all lower courts and are normally followed by the House of Lords itself. The ratio decidendis of the Court of Appeal are binding on all lower courts and, subject to some exceptions, on the Court of Appeal itself. Ratio decidendis of the High Court are binding on inferior courts, but not on itself. The ratio decidendis of inferior courts do not create any binding precedent.’ A Dictionary of Law, Elizabeth A. Martin (ed) (5th edn,
Oxford University Press 2002, reissued with new covers 2003) 374.
