Today’s globalising economy has made it necessary for law to become global too, hence the focus on international law. An international perspective on law and criminal justice is necessary for the student who wishes to understand the relationships between various sovereign nations. In these modern times, businesses have an increased capacity to move labour supply and capital from one country to another while conducting overseas businesses. This has led to more legal disputes which may not be in one’s familiar legal framework. This makes it necessary for the law student to be aware of the concerns that come with jurisdiction issues. Having some insight on international perspectives in law will assist in coming to an agreement on where legal disputes that concern private parties can be heard and which laws will be applied.
The European Union has a legal framework that covers many nations (supranational). It is the very first of its kind which has been brought about by regional cooperation. The trend of integration globally that is made possible by regional agreements will probably lead to more of such frameworks. This is so especially if you consider the Union of South American Nations which seem to be on track to follow a similar model ( Schemmers et al, 1995). This means therefore that a good understanding of the change that comes with these kinds of supranational legal frameworks will be necessary to be able to practice law and be involved in criminal justice.
Legal tradition in various countries is dependent on the culture, customs, politics and religion of that country (Brierly and Rene, 1985). Many countries have had their legal traditions influenced by those of other countries, hence no one country can be said to have a legal tradition that is pure. For instance, most of the Middle East and African countries have legal systems which are a mixture of various legal traditions. For example, Cameroon’s law system is the civil law system but it also has some elements of common law while Algeria has a legal system that is mixed, that is Islamic law, socialist and French civil law (Rene, 1999). Sometimes countries may have legal systems that are different but there may be elements which are similar in these legal frameworks; an example is where the structure of government is the same in two countries.
The major legal traditions found in different parts of the world include civil law, customary law, common law, Muslim law and mixed systems. Civil law originated from Canon law, Roman law and the Enlightenment as well as other religious laws like Muslim laws (Rene, 1999). Countries practicing civil law have their legal systems based on one or several codes of law. These are the main principles which provide guidance to the law. Examples include the French Civil Code, the Swiss Civil Code and the German Burgerliches Gesetzbuch (BGB). Acceptance of the Roman law took different courses in different countries. In some countries it was a result of legislative action whereas in other countries it was accepted through processing by the legal theorists of the time. As a result Roman law did not have complete dominance in most of Europe. However, it became a secondary source that would be applied when the local laws and customs did not have a provision in certain matters. Other local rules also gained interpretation according to the Roman law, thereby increasing the influence of Roman law.
Codification, dating back to the Code of Hammurabi in the times of ancient Babylon, is a concept that served to increase the unity, certainty and systematic nature of civic law. Though it received some resistance at first, codification continued to be developed as an expression of the ideas of the Enlightenment and the Natural Law. Further, the political ideal of the day which was conceptualized by democracy, the rule of law and the protection of property contributed to the support for codification. This led to the influential civil codes of France, Germany and Switzerland. Germany being a rising power in the late nineteenth century and the fact that it had a well organized legal system caused many developing Asian nations to borrow its legal system framework. These include Japan, South Korea, China and Taiwan. Some legal institutions in civil law are adaptations of Islamic law institutions for example, the Islamic Hawala institution forms the basis of the Aval in French civil law and also the Avallo in Italian civil law (Brierley and Rene, 1985).
Common law developed mostly among the Anglophone people. Common law was historically developed from custom, meaning that it began before any laws were written and its application was still continued after laws were written. Its major difference with civil law is that common law uses specific cases to draw abstract rules from while civil law begins with the abstract rules and applies these to the cases. Common law systems had their origins in England and have been inherited by most countries that were once part of the British Empire. Common law is composed of concepts and some legal institutions that have been borrowed from the laws of Islam and also Norman laws. The common law system was further developed by the English monarchy became weak following large costs of fights for control of big areas of France (Davis, 1989). Academicians have had a significant role in the development that has been seen in equity and common law. Their search for explanations and descriptions of the underlying structures, has slowly changed the way the law works (Taylor and Mehren, 2006).
Religious law holds the idea that God’s word is law. Islamic Sharia and Jewish Halakha are examples of this kind of law. Religion when considered in the context of law implies unalterability since God’s word cannot be changed. Much of the law offered in religious texts is not very detailed and therefore cannot form a legal system that is thorough. The Quran has a some law; this law however acts as the basis of interpretation of more law. Ijma and Qiyas are two concepts which illustrate this well. These two concepts are contained in the Sharia and Fiqh, which are the main bodies of law and jurisprudence (Makdisi, 1999). They both refer to the interpretation and are defined as reasoning that is dependent on previous cases and consensus (Ijma) and the use of comparison or analogy for reasoning (Qiya). Sharia and Fiqh a significant influence on the historical development of both civil and common law. The code of Jewish law finds its basis in the Pentateuch and is used by some Israeli communities. The interpretations of the Talmud are summarized in the Halakha which is a code of Jewish law. Israeli law however makes allowances for litigants to use the religious laws only when they choose to do so. Most of the Muslim world practiced Sharia law until the eighteenth century. It was not codified but the Ottoman Empire attempted to codify some elements of the law resulting in the Mecelle code (Badr, 1978). There have been attempts to make the Sharia law be in line with the conditions of modern days with Sharia being a supplement to the civil or common law in the countries. However, Saudi Arabia and Iran still have their whole legal system based on Sharia law (Badr, 1978)
Many countries due to the influence of other countries have mixed law systems especially in the Muslim countries where Islam is the prevailing religion but the governments have been making attempts at modernization. Nigeria employs civil law but the legal system is such that there is room for Sharia law to be practiced especially where the litigants are both Muslims. The legal traditions that have been described above have some degree of similarity but each sovereign entity may have its won unique aspects due to the different culture, customs, form of governance and circumstances of different countries.
Badr, MG. 1978, Islamic Law: How is it related to other legal systems? Journal of Comparative Law, pp 188-199
Davis RGC, 1989, Magna Carta, British Library, Fordhum University, retrieved from http://www.fordham.edu/halsall/source/magnacarta.html
Rene D, 1999, (ed), Comparison and Unification of the Legal Systems of the World, International Encyclopedia, Comparative Law, Volume II, Chapter 2, Divisions and Structure of the law.
Mehren GR and Taylor A, 2006, Private Law: A comparative approach, ISBN 9780512861858
Makdisi, AJ, 1999, Common law and its Islamic Origins, Law Review, North Carolina, volume 77 issue 5, pp 1635–1739
Brierley JEC and Rene D, 1985, Major Legal Systems of the World Today, London, Stevens Publishers ISBN 0421437408
Schemmers GH and Blokker MN, 1995, Sanctions and Supervision, International Law, Martinus Nijhoff Publisher, The Hague/Boston/London