CODES AND CONVENTIONS QUESTIONS & ANSWERS PART-16

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Q. a. The legal system in countries around the world generally falls into one of two main categories common law system and civil law systems. What is the main difference between the two systems and what are the roles of lawyer and Judge in each system?

b. How the provisions of the international conventions are given effect in countries following the above system of laws. State & describe with examples.

Answer :-

  • There are two main types of legal system in the world, with most countries adopting features from one or other into their own legal systems, Common Law and Civil law.
  • Common law are the customary laws Eg. law of commerce, personal laws-( Hindu law), insurance, contract etc
  • Civil laws are laws made by parliament through acts & enactments. Acts are laws directly made by parliaments. Enactments are laws indirectly made by parliament through delegated legislation & imported legislation

Common Law System

  • Common law is generally uncodified. This means that there is no comprehensive compilation of the legal rules & statutes.
  • While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over the time through the records of the courts as well as historically documented in the collections of case law known as yearbooks & reports.
  • The precedents to be applied in the decision of each new case are determined by the presiding judge.
  • Common law functions as an adversarial system, a contest between two opposing parties before a judge who moderates.
  • A jury of ordinary people without legal training decides on the facts of the case. The judge then determines the appropriate sentence based on the jury’s verdict.
  • Lawyers make presentation to the judge (sometimes to Jury) and examine witnesses themselves. The proceedings are then refereed by the Judge, who has somewhat greater flexibility than in a civil law system to fashion an appropriate remedy at the conclusion of the case.
  • In this system lawyers stand before the court and and attempt to persuade others on point of law and fact, and maintain a very active role in legal proceedings.

Countries with above type of legal system are USA, UK, INDIA, CANADA

Civil Law System

  • Civil Law, in contrast, is codified. Countries with the civil law systems have comprehensive, continuously updated legal codes that specify all matters able of being brought before a court, the applicable process, & the suitable punishment for each offense.
  • Such codes distinguish between different categories of law: substantive law establishes which acts are subject to criminal or civil prosecution, procedural law establishes how to determine whether a particular action constitutes a criminal act, and penal law establishes the appropriate penalty.
  • In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. Though the judge often brings the formal charges, investigates the matter, and decides on the case, he or she works within a framework established by a comprehensive, codified set of laws.
  • The judge’s decision is consequently less crucial in shaping civil law than the decisions of legislators and legal scholars who draft and interpret the code.
  • Lawyers still represent the interests of their clients in civil proceedings, but have a less central role. Their tasks commonly include advising clients on points of law and preparing legal pleadings for filing with court.

Countries with above type of legal system are CHINA, JAPAN, GERMANY, FRANCE, SPAIN

A civil law system is normally more prescriptive than a common law system.

Roles of a Lawyer & Judge in Each System

  • In civil law countries, judges are often described as the “investigators.” They normally take the lead in the proceedings by bringing the charges, establishing facts through witness examination & applying remedies found in legal codes.
  • Lawyers still represent the interests of their clients in the civil proceedings, but have a less central role. As in common law systems, but, their tasks commonly include advising clients on points of law & preparing legal pleadings for filing with the court. But the importance of the oral argument, in-court presentations & active lawyering in court are diminished when compared to a common law system.
  • In contrast, in a common law country, lawyers make presentations to the judge (sometimes the jury) & examine witnesses themselves. The proceedings are then “refereed” by the judge, who has greater flexibility than in a civil law system to fashion an appropriate remedy at the conclusion of the case. In these cases, lawyers stand before the court & attempt to persuade others on points of law & fact, & keep a very active role in legal proceedings. And unlike certain civil law jurisdictions, in common law countries such as the United States, it is not permitted for anyone other than a fully licensed lawyer to prepare legal documents of any kind for another person or entity. This is the province of lawyers alone.

Definition of Law by John Austin –

Law is the Command of the Sovereign with Sanction

Laws are made by the parliament called the Act Of the parliament on a particular subject. This becomes the supreme law and is called as an Act. This becomes the policy statement of the parliament for that particular subject who has precise and concise statements on the subject and exhibit the Intention of The Parliament.

Enactments are law indirectly made by the parliament on subject matters, which it has got no competence by taking the help of competent government department or other competent agency to prepare the draft. Once the draft is made then the procedure remains the same as the other. Thus the law is made by parliament by taking the help of the above said competent agency is called Enactments through delegated legislation.

Ex: – Cyber Law, e-commerce law, Law of atomic energy etc.

Sometimes the country gets into various international agreements under the international forum (IMO, ILO etc.), This agreement has to be ratified by parliament. Once this is done the ratifying state has the dual duty to:

1) To abide by the International agreement

2) To enact the suitable municipal law to implement the international agreement in its own country.

This is done by importing the provisions of the international agreements & converting them into Municipal laws. This is called enactments through the imported legislation.

Ex: –

International AgreementMunicipal Law
ILO ConventionsIndian Labour Law
Hague Visby Rules (Law Of Carriages)Indian Carriage of Goods by Sea Act 1925