The legal system is a method for interpreting and enforcing laws. It elucidates the rights and obligations of public and private endeavours by including laws, procedures, and institutions, allowing them to be carried out in a variety of ways. There are three basic legal systems in the world, which include civil law, common law, and religious laws, and institutions, allowing them to be carried out in a variety of ways. The basis of civil law is codified law, statute, or legislation. When considering cases, judges in these countries prioritise statutes over conventions and precedents. This legal system is in force in most EU member countries that are not in the jurisdiction of the British Commonwealth. It consists of a huge number of broad rules and principles that are frequently devoid of specifics. The idea is that the code controls all possible circumstances in practice and that when the code does not cover a particular situation, the judiciary can adopt some of the general principles to cover the gaps.
Unwritten law, such as custom and precedent, is known as common law. In such countries, judges value conventions and precedents more than legislation. Those that were once British colonies, or, to put it another way, countries that are commonwealth members, follow common law. One of the most evident contrasts between civil law and common law systems is that the former is a codified system, whereas the latter is based mostly on case law and is not formed by legislation. Religious law has shaped and moulded the legal systems in many countries. Judges in such countries render decisions based on religious concepts derived from the Holy Scripture. The countries that follow Shariat, such as Afghanistan, Iran, Iraq, and Pakistan, are the best examples of such a legal system. Selecting an ideal one out of them is always a very challenging task.
Which one should the country select?
Civil law will be the best choice because:
- The civil law handbook for becoming a better judge
Three features of civil law judicial design may be effective in judicial reform. To begin with, civil law employs career judges who have been taught and handled as such. Second, civil law offers a proactive and positive approach to ensuring a highly competent court. Third, civil law’s selective use of specialized courts offers professional decision-making where it is desired and, more importantly, a methodology for preserving the ordinary judiciary’s decision-making obligations from being jeopardized. Civil law judges are trained as judges and typically serve in that capacity for the rest of their careers.
- No Ambiguity
A civil law system has the advantage of allowing you to be examined just by the laws that were written down in front of you at the time. Judges are simply required to follow the law. They are not allowed to enact new legislation but only to interpret it, which decreases the uncertainty around the judgments. People will already be aware of the penalties that they may get for punishable offences. Judgments will not be arbitrary. As a result, people will have more faith in the country’s legal system.
- Peace and Stability
A person merely needs to file a petition to address a grievance against another person or entity in the civil law system. Without such a structure, everyone holding a grudge against someone else could try to settle it between themselves, which could lead to violence.
- Not discriminatory
It is not discriminatory, unlike religious law. All citizens will be subject to the same laws. Everyone will receive the same treatment. It will replace the personal laws based on the scriptures and practices of each of the country’s major religious communities with a single set that will apply to all citizens.
Universal and worldwide values of equality, humanity, and modernism define their societal attitudes and goals. Their desire to lose their religious identities must be seriously considered to fully utilise their potential for nation-building. The same set of personal laws will apply to all citizens. There will be no opportunity for concerns about discrimination, concessions, or special benefits enjoyed by a particular community based on their religious personal laws to be politicized.
Why one should not select a common legal system?
Stare decisis is the driving concept of our legal system. It is predicated on the idea that once a court has established a rule of law in one or more cases, the rule will no longer be subject to review or reversal by the same court or by those obligated to follow its decisions. There is no mention of the validity of the error or the precedent that must be followed in this maxim. The system was undoubtedly well adapted to the people for whom it was designed to do justice at a time when precedents were few, economic life had not yet reached its current complexity, the great landmarks of common law were already being worked out, and judges each had time to reflect on their points of view. The norm of stare decisis is founded on the value of legal stability and clarity, which, according to Lieber, is second only to its justice.
However, with the “infinite multitude of precedents” backing opposing viewpoints on far too many issues, it is reasonable to claim that stability and certainty, the rule’s raison d’être, have all but vanished. And the way precedents have been applied—or abused—has further eroded the rule’s significance. Instead of adhering to the basic maxim that only earlier judgments in the very same jurisdiction are enforceable precedents, many of our judges and attorneys now use the judgments of any other jurisdiction to buttress their conclusions when they think it is necessary. The distinction between ratio decidendi and dicta is also not preserved adequately. It may lead to uncertainty and confusion in the country. Judges are appointed by the legal system, whereas parliamentarians are elected and answer to the people. Some have contended that judges are unaccountable to the people as a result of this situation. Some argue that courts make decisions contrary to community beliefs and ideals and that the common law is fundamentally undemocratic. This viewpoint is frequently articulated in the media, particularly during sentencing discussions.
Why one should not select a religious legal system?
Religion is frequently misused by fundamentalists for their own gains. It has the potential to curtail the freedom of minorities and even members of the same religious group. Other spiritual perspectives are frequently dismissed. As a result, there may be significant clashes across the country. Religion frequently clashes with science. Fundamentalists would always prefer religious writings to science, which may result in the country’s delayed progress. Religion has the potential to stifle the country’s technological advancement.
Only the people of the country will suffer. Religion has the potential to absolve people of their responsibilities. It frequently keeps people from doing the things they want to do. As a result, it might be utilised to keep people in check. The rights to life, expression, and choice will all be severely harmed. This legal setup is often undemocratic. As a result, electing a government of the people’s choice may be impossible. Appointments to ministerial positions may or may not be fair, and they will always be scrutinised with suspicion. People’s faith in the government will be diminished as a result of this. The long-term consequences of this legal system may be negative since it may create a sense of division and differentiation between the majority and the minority. This distinction could also apply to national interests. People may be more concerned with the advancement of their own religious or linguistic communities than with the advancement of the country.
Each legal system has its own characteristics, advantages, and disadvantages. There are numerous flaws in civil law. A civil law legislature can adopt any law, even the most arbitrary, unilaterally (at least in parliamentary systems), which leads to injustices. Nonetheless, I thought this was the best of the bunch. Such weaknesses can be remedied if legislators take effective and corrective action. Countries that operate under both common and religious law are also performing admirably. Corrective and intentional steps will undoubtedly aid in the correction of all of these legal systems, resulting in a better society.
Author(s) Name: Jay Kumar Gupta (NMIMS School of Law, Bengaluru)