Introduction To Legal System

Introduction to
Legal System
Miss. Jyoti Singh Bhandari
Lecturer, National Law College (NaLC)
Email: Jyoti.singh@nalc.edu.np
Class Exercise
Students are requested to recall:
– The definition of Law as mentioned by
various School of Thought.
– Different Sources of Law.
– Definition of System.
– Different Legal Systems of world.
Law and Sources of Law
The Law is described as a set of rules which governs the way people
behave. It generally describes:
What one must do. (I.e. Paying Income Tax)
What one must not do. (Right Against Discrimination)
What one is allowed to do. (Right to Freedom)
Sources of Law:
Constitution,
Statute law,
Customs, Court decisions etc.
System
– The System is described as a set of things working together as parts of a mechanism or an

interconnecting network; A complex whole.
– Collins Dictionary describes a system as a way of working, organizing, or doing something which
follows a fixed plan or set of rules. Furthermore it mentions that one can use system to refer to an
organization or institution that is organized in this way.
– Cambridge Dictionary describes a system as a set of connected sets or devices that work together.
School of Thoughts on Source of Law
Natural School of Thought
Naturalists, or proponents of natural law, insist that the rules enacted by government are not the only sources
of law. They argue that moral philosophy, religion, human reason and individual conscience are also integrate
parts of the law.
Analytical/ Positivist School of Thought-
Early legal positivists, such as Bentham and Austin, maintained that coercion is an essential feature of law,
distinguishing it from other normative domains. Austin opined that the term source of law refers to immediate
or direct author of the law i.e. sovereign.
Historical School of Thought
Puchta, Savigny, Maine believed that law is not made but is formed. They argue that the foundation of law lies
in the common consciousness of the people that manifests itself in the practices, usages and customs followed
by the people making the customs and usages as the sources of law.
Sociological School of Thought
Ehlrich, Duguit believed that the law can not be derived from single source like legislation, sovereign etc. but
the multiple factors existing in society and the society itself.
Realist School of Thought
The realist believe that law is judge made.
Definitions :Legal System
1. Legal system refers to a procedure or process for interpreting and enforcing the
law. It elaborates the rights and responsibilities in a variety of ways.
2. Professor William Tetley described that the legal system comprises the law –
produced by law-making bodies i.e. legislatures and judiciary) – and the
institutions, processes and personnel that contribute to the operation and
enforcement of those laws. I.e. It can be said that the English legal system
comprises: legislation and common law; courts; judiciary; legal professionals;
police; prosecutors; juries; and mechanisms for providing access to justice. In
effect, the legal system describes the law and the machinery provided for
adjudication and implementation.
• The Law Dictionary mentioned about the few key elements of Legal System:
Basis of applying law that consists of
(1) A constitution, written or oral.
(2) Primary legislation, statutes, and laws; authorized by constitutionally authorized
legislative body.
(3) Primary legislation authorized body enacts subsidiary legislation or by laws.
(4) Traditional practices upheld by the courts.
(5) Civil, common, Roman, or other code of law as source of such principles or practices.
• Legal System is underlying principles of dispute resolution that reflect society’s
attitude. These can be law and/or public policy in codified form.
Legal System/Legal Traditions/Families
– Around the world there are different traditions in legal systems. As Tetley (1999)
explains, a legal tradition reflects deep-rooted, historical attitudes about the nature of
law, about the role of law in society and about the way law should be made, applied
and studied. He highlighted that there are two major ‘families’ of legal systems are
common law and civil law systems
– Legal System elaborates the rights and responsibilities in a variety of ways. Many
scholars argue that there are three major legal systems of the world consist of civil
law, common law and religious law. Apart from these:
– Jury system is a legal system for determining the facts at issue in a law suit.
– Tax system is a legal system for assessing and collecting taxes.
– Electoral system is a legal system for making democratic choices.
Common Law System
Countries following a common law system are typically those that were former British colonies or
protectorates, including the United States.
The original source of the common law system can be traced back to the English monarchy, which used to
issue formal orders called “writs” when justice needed to be done. Because writs were not sufficient to
cover all situations, courts of equity were ultimately established to hear complaints and devise appropriate
remedies based on equitable principles taken from many sources of authority (such as Roman law and
“natural” law). As these decisions were collected and published, it became possible for courts to look up
precedential opinions and apply them to current cases. And thus the common law developed.
Features of a common law system include:
– There is not always a written constitution or codified laws;
– Judicial decisions are binding – decisions of the highest court can generally only be overturned by that
same court or through legislation.
– .
Civil Law System
– The civil law system is a codified system of law. It takes its origins from Roman law. Countries following a
civil law system are typically those that were former French, Dutch, German, Spanish or Portuguese colonies
or protectorates, including much of Central and South America. Most of the Central and Eastern European
and East Asian countries also follow a civil law structure. Features of a civil law system include:
– There is generally a written constitution based on specific codes (e.g., civil code, codes covering corporate
law, administrative law, tax law and constitutional law) enshrining basic rights and duties
– Only legislative enactments are considered binding for all. There is little scope for judge-made law in civil,
criminal and commercial courts, although in practice judges tend to follow previous judicial decisions;
constitutional and administrative courts can nullify laws and regulations and their decisions in such cases are
binding for all.
– In some civil law systems, e.g., Germany, writings of legal scholars have significant influence on the courts.
– Courts specific to the underlying codes – there are therefore usually separate constitutional court,
administrative court and civil court systems that opine on consistency of legislation and administrative acts
with and interpret that specific code
Religious Legal System
– Religious law refers to the concept of a religious system or document being used as a
legal resource, refers to the concept that the word of God is law.
– The use of religion for public law has a static and permanent quality, preventing
improvement during legislative acts of government or development during judicial
antecedent.
– The most important kinds of religious law are Halakha in Judaism, Sharia in Islam, both
of which denote the "path to follow", and Canon law in some Christian groups.
– In some cases these are proposed simply as individual moral guidance, whereas in other
cases they are proposed and may be used as the source for legal system of the Country.
Difference between Common Law and Civil Law System
Feature Common Law Civil Law
Written constitution Not always Always
Judicial decisions Binding Not binding on third parties.
Significant influence in some civil law

Writings of legal scholars Little influence
jurisdictions
Common law systems have

evolved primarily in England and
The civil law tradition developed in continental
its former colonies, including all
Europe at the same time and was applied in the
History but one US jurisdiction and all but
colonies of European imperial powers such as
one Canadian jurisdiction. For the
Spain and Portugal.
most part, the English-speaking
world operates under common law.
United States, England, Australia, Spain, China, Japan, Germany,most African

Countries
Canada, India etc. nations etc.
Class Exercise
-Class will be divided into 2 groups advocating Civil Law and Common Law and take
turn to advocate about both system.
-Discussion on Notion of Legal System.
-Discussion on Sources of Law.
-Role of delegated legislation.
Notions of Legal System
– There are basically three notions of legal system that describe what is the current status of law in
society and what shall be done for the amelioration of these systems.
1. Traditionalist Approach (See Slide no 4)
Natural Law,
Positivist/Analytical,
Historical,
Sociological and
Realist Approach.
• 2.Critical Legal Studies Roberto Unger is prominent thinker in Critical
Legal Studies (CLS). CLS was officially started in 1977 at the conference at the
University of Wisconsin‐
Unger, a has described the law faculty of those days as a priesthood that had lost
their faith and kept their jobs. Although CLS has been largely a U.S. movement, it
was influenced philosophers, such as Marx, Engels.
• CLS is group of scholars that not only criticize particular legal rules but larger structures
of conventional of conventional legal thought and practice.
The CLS movement grew from a generation that questioned the authority in America.
• Within
this social and political context, the notion of law was questioned not only in terms
of what legal positivist’s have traditionally asked; namely, “What is the law.” , but also
asked “what does the law do”?
Dominant Themes of the CLS movement are:
(a) Indeterminacy: Asserts that laws do not by necessity produce specific outcomes.
(b)Contradiction: rejects the idea that a legal doctrine “contains a single, coherent,
and justifiable view of human relations.
(c)Legitimation and false consciousness: Law serves the powerful, not in an
immediate and direct way, but instead through “legitmation”. False consciousness is
a failure to see the exploitative aspects of the current system.
CLS includes several subgroups
Feminist Legal Theory: which examines the role of gender in the law;
Critical Race Theory: which is concerned with the role of race in the law;
Postmodernism: a critique of the law influenced by developments in literary theory; and a
subcategory that emphasizes political economy and the economic context of legal decisions and issues.
3. Post Modernism
A critique of the law influenced by developments in literary theory;
and a subcategory that
emphasizes political economy and the economic context of legal decisions an
d issues.
– It views Legal system as a system of law which gives total emancipation of
people.
– The proponents advocate self-organizing society
– For them power and knowledge are the most important factors that unite
law into system.
Source
– Rewati Raj Tripathi, Nepalese Legal System, 2nd Edition (Lumbini Prakashan: 2008)
– Legal Systems, available at www.definitions.uslegal.com
– Jurisprudence, available at www.law.cornell
– Stanford Encyclopedia of Philosophy, The Nature of Law available at plato.stanford.edu
– World Banks Groups, Common Law or Civil Law Systems available at ppp.worldbank.org
– Chandra Shekhar Khadka, Critical Legal Studies Defined available at slideshare.net

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Introduction to

Miss. Jyoti Singh Bhandari

Lecturer, National Law College (NaLC)

– The System is described as a set of things working together as parts of a mechanism or an

Judicial decisions Binding Not binding on third parties.

Significant influence in some civil law

Common law systems have

United States, England, Australia, Spain, China, Japan, Germany,most African

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