PART A (i) ESSENTIAL ELEMENTS OF LEGAL SYSTEMS Market economy an economy where the allocation of resources is left up to the

he market forces of supply and demand and the workings of the price mechanism. Most wealth is owned by individuals with a minimum being collectively owned. Planned economy an economy where the allocation of resources are made by the government. Individuals are allowed to own some personal possessions, but most wealth is held collectively by the government. Mixed economy the most usual model found, incorporating elements of both market and planned economies. Resource allocation is determined partly by government decisions, both direct (eg defence spending) and indirect (eg taxes and subsidies), and partly by the market forces of supply and demand. Total wealth is split between the public and the private sectors.

Rule of law Rule of law is the situation that exists when members of a society abide by a set of rules that govern their behaviour, whether that is by consent (for instance in a democracy) or by compulsion (for instance in a dictatorship). The concept of rule of law is closely bound up with that of separation of powers. Most consensual countries in the world have a legislature, an executive and a judiciary body. Separating the three avoids the dangerous situation where power is completely centralised in one person or a very few people. Together, they make up the mechanism by which the rule of law succeeds. In most countries there is a written, codified constitution which delineates the powers of each of the three organs of state, but even in common law systems such as the UK, which has no written constitution, there is clarity about the roles of and interaction between the three organs. In some nations, such as the US, the three bodies are completely separate so that each is accountable to, and can operate as a check and balance on the others. In most countries, such as the UK, there is a complex relationship between the three sets of powers, so that a balance is struck between control and accountability, on the one hand, and actually getting things done on the other. 1. The legislature is the body (usually elected by the people) which decides on what laws should be passed to ensure that the peoples wishes are met. Where there is a written constitution the legislature cannot pass a law that conflicts with underlying principles of the constitution, such as the right of free speech. If it does make such a law then the judiciary has the power to strike out that law. 2. The executive is the body (also usually elected) that makes the decisions that put the legislatures laws into action via the civil service and other state bodies. The executive implements rather than makes the law, and is subject to review by the legislature and the judiciary. 3. The judiciary is the body (which is sometimes elected) which rules on any disputes about laws, whether these are between the government and the people (criminal law) or between individuals (civil law). In most legal systems the judiciary do not in theory make the law; they decide issues in relation to the law that has been made by the legislature and implemented by the executive, and they review the actions of both. In fact in their role as interpreters of the law in most systems, judges do effectively make law.

Doctrine of judicial precendent A precedent is a previous judges decision which another judge is bound to follow in deciding a subsequent case. The doctrine of judicial precedent or stare decisis is therefore based on the idea that a judges decision in a case should be consistent with previous legal decisions on similar cases. This gives predictability and stability to the law while allowing it to develop. Such a doctrine does not have a parallel in civil or Sharia legal systems. Rules for applying a precedent: 1. A precedent must be based on a point of law, not a point of fact. 2. It must be part of the ratio decidendi (reason for the decision), and not just the obiter dicta (in passing), of the previous case. Ratio decidendi is any rule of law that the previous judge has used in coming to his decision. Obiter dicta is simply a point made in passing by the previous judge that was not critical to the decision and will have only persuasive effect on a subsequent judge. 3. The material facts of the two cases must be the same. 4. The prior court must have a suitable (usually superior) status in the court hierarchy. Court status: In England, the court system is divided into a system of lower and higher courts. The lower courts cannot make precedents of their own and must follow precedents of higher courts. The higher courts create precedents for the lower courts and each higher court is bound by precedents created by the court above it in the hierarchy and also by its own precedents. Avoiding precedents: It is possible to avoid a precedent by distinguishing a case from a previous one by saying that the facts are not materially the same, this being a matter of judgement. Presumptions of statutory interpretation: In common law systems, an accepted role of judges is to interpret enacted statute law. This is not the case in other systems. In theory at least, judges in both civil and Sharia law traditions are not supposed to interpret the law but merely to apply it. Accordingly, common law has developed a number of presumptions in relation to interpreting statute. Some of these are as follows: 1. A statute does not alter the existing common law. 2. A statute does not have retrospective effect to a date earlier than its becoming law.

3. A statute does not repeal other statutes. 4. Any point on which the statute leaves a gap or omission is outside the scope of the statute. Role of judges (a) Common law system Judges in a common law system build up the case law on which the system is based. They do this by setting and applying judicial precedents, and by interpreting statutes. Interpreting statutes In common law systems judges also play a role in interpreting statutes passed by the legislature and applying them or not to the facts of a case. In some systems, such as the US, judges can rule that a statute conflicts with the written constitution of the state and thereby strike it down. In other common law systems, judges cannot overrule the legislature in this way. In the UK this is because of parliamentary sovereignty, which means that statute is ultimately superior to case law. When interpreting a statute and applying it to a particular decision, the judge is in fact adding to the body of case law in a common law system. There are therefore certain clearly defined presumptions of statutory interpretation, such as that statute is not intended to override the existing common law, which apply unless the statute is explicit on that point. There are also certain rules for statutory interpretation, such as the literal rule (words have their plain meaning). (b) Civil law system Most civil law systems are systems of codified law, where the legislature produces a set of general principles and some specific codes, such as a civil code or a criminal code. The rules in the specific codes are applied where relevant by the judges to the facts of the case. If there is no specific rule available then judges apply the general principles. Judges cannot make law as is the situation with case law in common law systems. They simply apply the law. In addition they perform judicial review, in which they can rule on whether or not a particular statute conflicts with the systems written constitution or codes.

Civil law system Principles of civil law: 1. Certainty In civil law systems there is a distinct division between those who draft the law and those who apply it. In contrast to a common law system, where judges create legal precedents and therefore shape and develop the law, civil law judges do not have such a role. Rather, they apply enacted law which has been drafted by legislators. This promotes the concept of certainty, as in theory, the answer to any legal problem can be found in enacted law, and the relevant piece of law will be applied. Some general principles regarding how civil law system judges should apply the law exist. When the meaning of a statute is clear and unambiguous, judges must not use their power to interpret it in a different way. When ambiguity exists, civil law system judges are required to interpret it in accordance with the spirit of the drafted law, not necessarily to the exact written requirements. The judge is required to keep in mind the intention of the legislator when delivering judgement. Certainty is therefore promoted. 2. Comprehensibility The famous civil law system Codes, for example in France, the Code Napoleon, is an example of this comprehensibility, as when law is codified in the civil law system, this results in a comprehensive code of law in a particular area being created. That is, in the French system, theoretically all civil (as opposed to criminal) law is contained within the Code Napoleon. Also, the fact that judges do not create law also promotes comprehensibility in the law, as it allows legal codes to be finite and therefore comprehensive. In contrast, in the common law system, enacted law can be developed possibly beyond the original intention of the legislators, through case law. By implication, in the common law system, enacted law is never a comprehensive code as it is always being developed and, in effect, added to.

Sharia law system Principles Sharia is the Arabic word for a way to a watering place. A vitally important principle of Sharia is that it is divine law ordained by Allah for determining the way for mankind to live. This has various implications for Sharia in practice. First, it means that it is a legal system that comprises more than the individuals public life but it also sets down rules for an individuals moral, ethical and religious life in a way that both common and civil law systems do not. Second, it means that the law has been set by a higher authority than humans and is therefore not continually developed (by enacting further law) in the way that common and civil law are. Role of judges Judges in Sharia law are required to apply the law, not create it. In this way they are more comparable to civil law judges than common law ones. In strict Sharia tradition, judges are required to be clerics, or Imam, as it is only appropriate for suitably qualified clerics to apply the law. In applying the law, which is primarily sourced in the Quran, a Sharia judge may turn to the Sunnah to see how the law should be applied in practice. The Sunnah is based on records of what the Prophet Muhammad said, and how he interpreted the law in the Quran. The Sharia judge may also use the secondary sources of law to determine how to apply the law. The secondary sources of law are various schools of law based on the writings of major jurists. These schools of law were built up as a result of the relevant legal scholar making use of what are known as ijithad or methods of interpreting the law. The basis for using ijithad is a story recorded in the Sunnah about the Prophet questioning a cleric on how he would decide legal cases. Example Pakistan has adopted Sharia law, although it still retains elements of an older system and judges are not all required to be clerics as discussed above. Pakistan has a Federal Shariat Court to ensure that law enacted by legislators is not repugnant to Sharia. The judges in this court are required to carry out judicial review to ensure that the law is not an offence to Sharia principles.

Sources of law Case law Case law is the body of law made by judges over time in the decisions that they reach in the cases before them. These set precedents which may or may not be binding on later decisions. In English law, case law comprises the common law and equity, two of the major sources in what is known overall as a common law system. Statute law Statute law comprises the legislation that is made by the countrys legislature. In England this is the Houses of Parliament. Legislation may be primary legislation, which starts as a Bill and becomes an Act of Parliament, or it may be secondary or delegated legislation, drafted by government departments and enacted under powers given by a primary piece of legislation. UK statutes are not the only form of binding legislation in the the UK, EU regulations are also immediately binding. The UK is committed by EU membership to enact the provisions of EU directives into UK law. Statutes are not always new laws, they may amend previous statutes, or they may codify the common law, so making a body of previously binding case law redundant. In civil law systems, statutes containing specific rules in specific circumstances made by the legislature are the main source of law. In such systems there is also secondary legislation, called administrative regulations. Statutes may not conflict with the underlying written and codified constitution of the state. Codified law Codified law is the set of underlying principles contained in a constitution or a code (such as the French Code Napoleon) passed by the legislature in civil law systems. It is similar to statute law in that codified law is the product of the countrys legislature rather than its judiciary, but because it contains general principles which must not be contradicted by statutes, its effect is to act as a restraint on future legislatures. In the US, ensuring that new statutes do not conflict with the Constitution is the job of the very powerful Supreme Court. When trying a case a judge will look at the relevant code, such as the commercial code in the case of contract law, to see whether it can be applied directly. If there is no direct application then the judge must apply the general principles of that code in order to reach a decision.

Precedent (a) Common law (b) Civil law In civil law systems law is codified, there is no concept of judge-made law. Judges apply the law as drafted by the legislature to the facts of cases before them. Previous decisions by judges may be persuasive or at least helpful in helping a judge to apply the law to particular facts before the court, but they are never binding and so could not be termed precedents in the same way as in the English common law system. (c) Sharia law In Sharia law systems the law is explicitly based on the religion of Islam, so it is essentially a binding god-given law incorporated in the Quran and the Sunnah, which comprise Ahadith (interpretations by the Prophet). Persuasive ideas are also put forward by various scholars of Sharia law, and if there is unanimity among them then these ideas are also binding. Judges cannot create law by means of precedent as they cannot change the law. However, they do have to apply the law to the facts of cases brought before them, which means that the law may need to be interpreted.