WHAT IS A LEGAL TRADITION?
A legal tradition is an aspect of a general culture and needs to be distinguished from a national legal system , meaning the body of rules in operation in a particular society at a given time, together with the institutions which go with them.
Legal systems may be grouped into families according to the tradition to which they belong. For instance, the Australian and New Zealand legal systems belong to the common law tradition whilst the Italian and West German legal systems belong to the civil law tradition. Legal system will usually be the property of the territorial nation state, for this has come to be the normal unit of political organization in the modern world. But legal tradition can belong to other units of political organization, such as the European Community based on the Treaty of Rome.
WHAT IS A LEGAL SYSTEM?
Legal systems do not emerge out of nothing ; they possess a history and reflect ideas and make use of institutions , which have developed over time, and been moulded by cultural and political forces. As A W B Simpson in “Invitation to Law” rightly asserts, since a nation’s legal system is a cultural phenomenon, the conception of a family of legal system or legal tradition involves grouping together particular legal systems which make use of the same basic ideas, and thus share some degree of cultural homogeneity. Legal system on the other hand have a more limited function; they are the means through which the special business of lawyers, which is the resolution of disputes and the ordering of social life through rules, can take place.
WHAT ARE THE MAJOR DIFFERENCES BETWEEN LEGAL SYSTEMS AND LEGAL TRADITIONS?
• Legal system involves all the branches of the law , the legal procedures , rules, usages in a legal system whereas a legal tradition according to AWB Simpson involves grouping together particular legal systems which make use of the same basic ideas thus cultural homogeneity.
• While the world can boast of several legal systems, this is not same as legal traditions. According to Merryman, three main legal traditions –Common law, Civil law and socialist legal tradition.
• The concept of legal pluralism has made it possible for a legal system to have more than one legal tradition operating within that legal system at the same time. Legal pluralism is simply a reference to the co-existence of more than one form of law within the same jurisdiction or legal system. In Ghana, as in most African countries, by reason of our colonial history, we have a pluralistic legal system, with the system of law inherited from the colonial period co-existing with the customary and religious systems of law.
• A legal system is confined to a particular state or territorial boundary. A legal tradition however cuts across territories.
Two main legal traditions : the common law and the civil law.
WHAT IS THE HISTORICAL DEVELOPMENT OF THE CIVIL LAW?
The civil law or Romano-Germanic system is the legal system of countries predominantly based or influenced by the Roman law (ius civile). This is the dominant and oldest legal tradition in the world which covers significant parts of Europe, Asia and Africa. It all covers all of Central and Southern America. The civil law has also contributed immensely to the development of international law. For Merryman, the origins of the civil law can be traced to the publication of the Twelve Tables in Rome in 450 BC.
AWB Simpson, in his book “invitation to law” attempts to trace the history of the civil law tradition: Around the end of the third century, the Romans developed a sophisticated body of private law which dealt with the relationship between citizens. This body of laws were developed by jurists who were typically wealthy patrician individuals who acted as legal consultants and wrote books about the law, not in return for money, but simply to acquire honour and prestige in a society which revered the law. By the sixth century, there was a huge body of laws and juristic opinions which gave rise to difficulties in locating the law. Emperor Justinian of Rome therefore established a commission , led by the jurist Tribonian, to codify all the laws which were found in the massive body of surviving juristic writings. By 534 AD, the Corpus Juris Civilis (or the Compendium of Civil Law) , a collection of statutes (called codex) which comprised a digest (a collection of juristic law sorted out into topics) and a book of Institutes (an official first year comprehensive textbook on private law for students in the law schools of Byzantium and Beirut) was published. Merryman asserts that the codification exercise by Justinian sought to abolish all prior law except those included in the Corpus Juris Civilis. As such, most of the manuscripts of the jurists of the classical era were destroyed. The first three books of the Institutes of Justinian were of Persons, of Things and of Obligations.
According to Merryman, the civil law tradition is a composite of several distinct sub-traditions with separate origins and developments in different periods of history. Of these sub-traditions, the major influences were Roman civil law, canon law and commercial law. With the fall of the Roman Empire, Roman Civil law as espoused in the Corpus Juris Civilis fell into disuse. However, in the twelfth century, during the Renaissance period in Italy, an intellectual and scholarly interest in law reappeared and the first modern European Universities started teaching law based on the Corpus Juris Civilis of Justinian. The Corpus Juris Civilis was polpular because the people believed that it had the authority of both the pope and the temporal emperor behind it. The people also recognized its high intellectual quality.
Within a short time, men from all over Europe came to Italy to study the Corpus Juris Civilis which was taught in Latin. They returned to their nations and established universities where they also taught the Corpus Juris Civilis and these became the basis of a common law of Europe known as the jus commune. The jus commune gave Europeans a common body of law and of writing about law, a common legal language and a common method of teaching and scholarship. Even in some parts of Europe, the Roman civil law was formally received as binding law. The process by which nation-states of the civil law world came to include the jus commune in their national legal systems was known as the Reception.
The second oldest component of the civil law, as set out by Merrymann is the canon law of the Roman Catholic Church. This was developed by the church for its own governance and to regulate the rights and obligations of Catholics. The ecclesiastical courts were developed for the application of canon laws. The study of canon law was joined to the study of Roman Civil law or Corpus Juris Civilis in the European universities and both laws contributed to the formation of the jus commune. The canon law influence was mainly in the areas of family law and succession , criminal law and the law of procedure.
The third is commercial law which is traced to established rules for the conduct of the commercial affairs of Italian merchant guilds. It was the pragmatic creation of practical men engaged in commerce, as such, interpretation and application went on in commercial courts which had merchants as judges. The laws of the guilds soon took on an international quality and it penetrated throughout the commercial world in Europe. These five sub traditions of the civil law traditions are embodied in codes : the civil code, the commercial code, the civil procedure code, the penal code and the criminal procedure code.
WHAT IS COMMON LAW?
The common law legal system originated in England and spread throughout the world mainly through colonization. It was partially received especially in Muslim countries such as India and Pakistan, where it co-existed with Islamic and other local laws. According to Quansah, in other countries such as the United States and Canada, the common law has been very adapted. It was brought to some African countries such as Ghana, Botswana, Nigeria, kenya nad Zimbabwe mainly through colonization.
There are three main phases in the development of the English law which is the originator of the common law. First, the development of the common law and the common law courts. Second the development of equity and finally , the fusion together of common law and equity.
The Norman conquest of England in 1066 is generally considered to mark the beginning of the history of English law. Before that England was not united and did not have a central administration. There was the existence of diverse customary laws of German origin which were supplemented by royal statutes. This period was called the Anglo-Saxon period. The local courts were presided over by Bishops and Earls. After the battle of Hastings, William the conqueror introduced a strong feudal system and brought an end to tribal rule. Every piece of land was held by mediately or immediately by the Crown. The English King had his own Royal Courts (Courts of common law) while the feudal Lords had local courts. This system paved the way for the common law. The Normans created a uniform and common law based on the unification of the diverse local customary laws. The King’s court eventually split into three : the Exchequer (dealt with financial matters), the Common Please (dealt with disputes about the rights in land) and the King’s Bench (serious criminal matters).
Difficult cases were tried in Westminster where the Royal Courts were centralized. When similar issues arose, the earlier solutions were applied. The law was thus common as between the royal courts (hence the name common law). This gave rise to judicial precedence (stare decisis). Civil action in common law were built around the writ system. To begin an action, the plaintiff had to obtain a writ. The writ was a written command issued by the Lord Chancellor in the King’s name ordering the defendant to appear in court and show cause why the plaintiff should not be given the relief he claims. If there was no writ to cover what the plaintiff claimed then there was no remedy.
The Common law developed rapidly in the 13th century but by the 14th century it declined. This is because it had some defects.
First, in the thirteenth century, the writ system covered very parochial ground, and the complaint of each party had to conform almost impracticably to a specific writ. Hence failure to comply with the writ specifications was fatal to a person’s case. The power to invent new writ meant also the power to create new rights and duties. To preclude the recognition of new remedies, the provisions of Oxford were enacted in 1258 which provided that the Chancellor could not on his own initiative issue new writs. A new writ could only be issued if it had the command of the King and his Council. This problem was mitigated by the Statute of Westminster II in 1258 which gave the Chancery clerks the power to invent new writs only if the case was in a like with an existing writ. So if there existed a writ in a like case, falling under a similar law and requiring a like remedy, the existing writ could be varied to meet the requirements of the new case. This resulted in litigants not having a remedy either because there was in existence no writ to cover their case or the existing writ could not be conveniently amended to fit the particular facts and circumstances of the case. Again, an error in the application of a writ can result in the action being lost. As indicated earlier, the writ had complex rules and because of that mistakes were inevitable. Writs were also quite expensive and discouraged potential litigants.
Second, the doctrine of stare decisis or judicial precedence insisted that a previous case even if wrongly decided remained a binding authority until overruled by a higher court unless it can be shown to have been decided per incuriam or can conveniently be distinguished. This made it impossible to depart from previous decisions to do justice in novel situations.
The third is the problem of defences and corruption. The personal power and influence of many defendants prevented plaintiffs, often by bribery and intimidation of juries, from getting justice before a common law court. Judges were also accused of bribery and corruption while the defendants could delay proceedings.
Fourthly, the common law remedies were inadequate. In that declarations and damages could be awarded whilst injunction could not be placed on individuals. Thus the common law remedies acted in rem and not in personam.
Fifthly, the common law did not recognize trust. Due to these defects, cases were brought to the king –in-council.
Sixthly, a mortgagor at common law forever lost his right of redemption of the property if he failed to redeem it at the precise date agreed on by the parties.
THE DEVELOPMENT OF EQUITY
Direct petitions were made to the King to grant an appropriate remedy for the injustice arising from the deficiencies and limitations of the common law. This is because the King, as Fountain of Justice, had the residue of judicial power. The petitions known as bills were addressed to the King initially but as their numbers grew the petitions were referred to the Lord Chancellor directed by the King. Subsequently, the proclamation of 1349 provided that certain petitions should be directed to the chancellor. In 1474, the Chancellor issued the first decree on his own authority and thereafter his own decrees were often made. The Lord Chancellor who was the next most important person in the realm after the King was referred to as the ‘keeper of the King’s conscience’ disregarded the common law formalities and stuck a fair dealing judging it with his own conscience. The Chancellor operated upon principles of natural justice and fairness and did not follow previous precedents. He gave rulings based on his own conscience of what he thought was right and fair. John Seldom captures it thus “Equity varies with the length of the Chancellor’s foot.’ He was prepared to look beyond legal documents and to examine what the parties had actually intended to do. Also, he resolved the problem of compelling the attendance of the defendant with the issuance of a royal writ by means of a writ called a subpoena, ordering the defendant to appear on pain of forfeiting a sum of money.
In its early stages, equity was not a system of law or fixed body of rules. Each case was decided ad hoc by the Chancellor according to his own sense of justice. This made the outcome of a case unpredictable partly because of the lack of precedence as well as the fact that the conscience of the Chancellor differed from one person to the other. Later in 1672, all Chancellors were trained lawyers. From the Chancellorship of Lord Nottingham in 1673 as well as Lord Shaftesbury and Lord Eldon, equity was transformed from a jurisdiction based conscience of the Chancellor into a system constructed around established principles and rules separate and distinct from the commonlaw. Because of his great work of systematisation of the principles of equity, Lord Nottingham is known as the father of Equity. In 1818, the rules of equity were as fixed as those of the common law. This body of law supplemented the common law and sometimes even corrected it.
Nonetheless, unavoidable overlap of the two systems led to some conflict between them, and occasionally the common law courts would make an order in favour of one party while the Court of Chancery made an order in favour of the other. The conflict was resolved by James the 1st in the Earl of Oxford’s Case (1616) in the seventeenth century where Lord Ellesmere ruled that equity should prevail; in other words in cases of conflict the ruling of the Court of Chancery is to be followed, a ruling incorporated in section 25 of the Judicature Act of 1873.
Finally, by the nineteenth century many of the original advantages of equity over the common law courts had disappeared. The Chancery system became very slow and rigid with cases taking years to resolve. Its rules became so fixed that a ‘rigor aequitatis’ developed. The Judicature Acts of 1873 and 1875 finally fused the two systems.
The Judicature Act of 1873 which came into force in 1875 abolished the King’s Bench, Common Pleas, Exchequer and Probate , Divorce and Admiralty as well as the equity court and established a single High Court with the jurisdiction to administer both law and equity. One of the most fundamental effects of the Judicature Acts was to prevent the multiplicity of proceedings so that all matters in controversy, whether legal or equitable, might be finally and completely determined by the same court in the same suit.
It must be emphasized that it was a fusion of jurisdiction and not law. As Ashburner ‘Principles of Equity’ puts it ‘The two streams of jurisdiction though they run in the same channel , run side by side and do not mingle their waters’. This has been rejected by modern authorities like Sir George Jessel who argues that as there is only one court and that equity laws prevail it is a fusion in both jurisdiction and law. This was supported by the Law Lords in United Scientific Borough Council. Maitland contends that so much should not be read into the fact that equity prevails over the common law as equity would not exist without the common law.
WHAT ARE THE BASIC DIFFERENCES BETWEEN THE COMMON LAW AND THE CIVIL LAW?
• E.K. Quansah arguing from a philosophical perspective, asserts that the civil law is based on rationalism and is essentially deductive. It starts from broad principles that are then applied to individual cases. By contrast the common law is inductive and operates on the principle that knowledge is derived from experience. Based on this the civil law can be described as dogmatic (expressing rigid opinions) where as the common law is empirical (derived solely from experience). The common law as Oliver Wendel Holmes Jnr said is not based on logic but experience whilst het civil law is based more on logic than experience.
• From a historical perspective, the civil law system is based on and has substantially been influenced by Justinian codes. By contrast, the influence of Roman law on common law is very insignificant
• The civil law system is based on codes, which are essentially comprehensive and systematically stated provisions of the different braches of the law , complemented by subsequent legislation. For example, the Italian cinque codici consists of the civil code, the code of civil procedure etc. These codes lay down a number of precepts in the different topics that they cover, which are assumed to be universally valid, irrespective of the time or place in which they apply. The common law by contrast is essentially judge made law, which seeks to provide solutions to individual disputes rather than law down universal rules of conduct and it , is expressed in court actions and legal remedies rather than substantive rules.
• The doctrine of binding precedent or stare decisis which require the lower courts to follow the laid down rules of the higher courts is found in the common law system which does not apply to the civil law system. Lower courts do take notice of the higher courts with the belief that their decisions may be reversed on appeal
• The legislative technique in the two systems are different. In the civil law system, the legislature drafts the main outline of the law and leaves the executive with much discretion to work out details by means of secondary legislation. The common law tradition however is for the legislature to draft laws in a detailed manner leaving the executive with little to be regulated.
• The structure of the courts in the two systems is different. In common law countries, the judiciary normally consists of a uniform body of courts which settle all types of disputes. In civil law countries the arrangement is different; there are separate courts which have jurisdiction for settling disputes between the administration and the citizens which are known as administrative courts and a separate court for settling disputes between citizens which are known as ordinary courts.
• The common law is an adversarial system , that is a contest between two opposing parties before a judge who moderates. The civil law system on the other hand is inquisitorial. A judge often brings the formal charges, investigates the matter and decides on the cases based on the framework provided by the codes.
• In the common law system, a jury of ordinary people without legal training decide on questions of fact. Contra, in the civil law, the judges establish the facts of the case. Juries may be used only in a criminal trial
• The common law judge determines the appropriate sentence based on the jury’s verdict. The civil law judge however applies the provisions of the applicable codes in terms of passing sentence.
• In the common law system, judges are trained as lawyers and appointed to the various courts however in the civil law system, judges receive special training to qualify as judges.
• Lawyers in the common law are generally trained as generalists whereas lawyers in the civil law are trained as specialists.