the legal systems of the world

5/20/2018 The Legal Systems of the World

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A PANORAMA of the

LEGAL SYSTEMS of the

WORLDIntroduction to Law by Rufus Rodriguez


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TWO CLASSIFICATIONS of

Well-Developed Legal Systems First: Based on ethnic, cultural group

of people Egyptian, Mesopotamian, Hebrew,

Chinese, Hindu, Greek, Roman, Celtic,Slavic, Germanic, Japanese and Anglo-

American Many of these are now gone (Egyptian and

Mesopotamian)

What remains are the Anglo-American and theRoman

Hindi survives by tolerance

Chinese alone survives in independence


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Two Classifications of Well-

Developed Legal Systems

(cont...) Second: Based on religion Catholic legal system (Papal/Canon Law),

Mohammedan legal system

Catholic legal system exists as the law for themembers of the universal Roman Catholic

Church.

Mohammendan system governs the spiritual

life of its members but has been incorporatedby many Islamic states into their official legal

system.


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EGYPTIAN Legal System

Traced back to beyond 4000 BC

Found at the Valley of the Nile

Came into contact with all the great

primitive race-stocks of Africa, Asia andEurope

Ended during the reign of Cleopatra

Eight century before Christ by the civil warand then by conquests of invaders from

Assyria, Persia and Greece. The Roman

Caezars struck the final blow to Egypts

political independence.


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Key Features of

the Egyptian Legal System The monarch (Pharaoh) was

constitutionally the sole supreme ruler.

He ruled according to law; he was its

autocratic spokesman. In theory, every land and every man (alive

or dead) belonged to the monarch.

No man could be buried without the kings

assent.

Monarch exercises the JUDICIAL,

ADMINISTRATIVE, and LEGISLATIVE

functions.


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Key Features of

the Egyptian Legal System

(cont...) How was legislation done? The monarch made the lawsole legislator.

The earliest human lawgiver in Egyptian traditionwas Menes (3200 BC)

How was justice administered? The king and the supreme judges dispensejustice through the central royal court (CRC). CRC headed by the kings supreme justice, assisted by

30 supreme judges.

Originally, the office of the prime minister and of chiefjudge were separate, but they were merged and the titlechief judge signified always the kings chief minister.

Provincial courts dispensed justice too. Presided by administrative officials, under the Central

Court.


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Some Insights on

the Egyptian Legal System King Thutmose IIIs instruction to

Bekhmire when appointed chief judge:

It is an abomination of god to show

partiality. This is the teaching: thou shaltact alike to all, shalt regard him who is

known to thee like him who is unknown to

thee, and him who is near to... Like him

who is far... An official who does this thenshall flourish greatly in the place.


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Some Insights on

the Egyptian Legal System

(con,t...) Ramse IIs parameter of goodleadership:

I planted the whole land with trees and

green things, and made the people todwell in their shade. I made the land safe,

so that a lone woman could go on her way

freely, and none would molest her. I

rescued then humble from theiroppressors. I made every man safe in his

home. I preserved the lives of those who

sought my court justice. The people were

well content under my rule.


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MESOPOTAMIAN Legal

System Emerged by 4000 years before Christ Mesopotamia was the land of the two

rivers: Euphrates and Tigris

Its civilization was centered aboutBabylon in the southern portion knownas Chaldea and in Assyria in the north

It lost its independence under thePersians about 500 years beforeChrist

It disappeared under the Greeks about

100 years before Christ


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Key Features of the

Mesopotamian Legal System The king was the foundation of justice.

The king was the lawgiver, but he

received the law from divine guidance

or the deity. The sun-god Shamash was the god of

Law, whose children were Justice and

Right. Sumerian Urukagina of Lagashfirst

historically known Mesopotamian

lawgiver.


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Key Features of the

Mesopotamian Legal System

(cont.) King Hammurabi (about 2100 BC)deputized the administration of justice tothe royal priest class in the temples to abody of royal secular judges, sitting

commonly at the great gate and marketplace of the city. Code of Hammurabirefers back to King

Hammurabi. This is the earliest knownnational code in the world; it is the most

complete, authentic and most advanced ofancient codes.

The Code of Hammurabi covers the wholescope of law: crime, family, property,commerce. It reflects agricultural and tradingeconomy.


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Key Features of the

Mesopotamian Legal System

(cont.) Different Codes and their Insights on Divorce: Code of Hammurabi

Code of Assur

Deuteronomy

(Please, see p. 33. Introduction to Law by RufusRodriguez)

It was during the time of King Hammurabiwhere we find the earliest promissory note

(PN)it the oldest negotiable instrument inthe world. This manifest that at this time, wecan already find advanced ideas incommercial law.


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End of the Mesopotamian

Legal System It was during the time of Belshazzar, the

last native ruler of Babylonia, when theMesopotamian legal system wassupplanted. Belshazzar lost his empire to Cyrus, king of

the new Persian nation.

Later, new invading races followed and by acentury before Christ, the Greek conquerors

supplanted the Mesopotamian legal system. Hammurabis pillar-code was buried under

the rubbles of ages, until 2000 years laterwhen French explorer De Morgan found it.


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HEBREW Legal System

Note: After the Egyptian and Mesopotamian legal systems,the next oldest legal system is the Chinese legal system.

However, we are going to discuss the Hebrew Legal System

because of its proximate affinity with the Mesopotamian Legal

System.

The early Hebrew civilization wasoriginally NOMADIC and PASTORAL,

then AGRICULTURAL and only later

COMMERCIAL.


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HISTORY of the

Hebrew Legal System In Egypt and in Babylon, the Hebrew

tribes were a subject people.About 2100 BC, the patriarch Abraham

saw King Hammurabi as an enemy in

battle.A thousand years later, Abraham andAaron appeared in the Court of Pharaoh(King Rameses II, 1300 BC), asking for

their peoples freedom from bondage. But it was during the time of the Hebrewjudge DANIEL that the Hebrew LegalSystem developed.


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HISTORY of the

Hebrew Legal System (cont.) FIVE well-defined STAGES of the

Hebrew Legal System during

DANIELs time:

1) MOSAIC PERIOD 2) CLASSIC PERIOD

3) TALMUDIC PERIOD

4) MEDIEVAL PERIOD 5) NATIONALIST PERIOD


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MOSAIC PERIOD

Hebrew government was a THEOCRACY Authority and power were ascribed to God

Theos = godand Kratein = to rule

Hebrews attributed their laws to divine lawgiver.Moses was said to have gone up Mount Sinai toreceive from YAHWEH the Ten Commandments.

How was justice dispensed? At first, personally dispensed by the tribal leader,

then as tribal population multiplied and political

life complex, justice was dispensed through anorganized hierarchy of courts.

In Exodus, Moses delegated justice toprofessional judges.

Solomon was one example of a judge.


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MOSAIC PERIOD (cont.)

From this period comes: Pentateuch (Five Books)made up of

narratives and codes, such as Genesis,

Exodus, Leviticus, Numbers,Dueteronomy.

Pentateuch is also known as TORAH or

Ancient Law.


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CLASSIC PERIOD

Formed by the legal practice developingbetween 300 BC and AD 200.

In theory, the government was still aTHEOCRACY.

Where was the FUNCTION of JUSTICEvested? Ceased to be a ROYAL ONE.

The Jewish people at this time had come underthe suzerainty of the Persian, Greek and Roman

rulers. However, in the Jewish internal government,

supreme authority (religious, social, political,legislative, and judiciary) was vested in a Senate(Great SynhedrionGreek for Assembly and

Bet din hagadol in Hebrew or high council). Itconsisted of 71 members.


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CLASSIC PERIOD (cont.)

Under the Roman sovereignty, theJewish people for two centuriespreserved the administration of their ownlaw.

Their ruler, Herod, was still called king. However, the convulsive political rebellions of

the Jews, after the time of Jesus, led theRoman Emperor Vespasian to take rigorousrevenge. Jerusalem fell in AD 70 under the

assault of Titus, Vespasians son. With the fall of Jerusalem, the Roman soldiers

brought to Rome the Ark of the Law, containing theScroll of the Law and the Seven BranchedCandlestick.

Hebrew self-government ended, and their legalsystem ceased to prevail.


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TALMUDIC PERIOD

AD 200 to AD 500

Formed by the Talmud, i.e. reports of all

recorded cases and commentators since

about 300 BC, digested in twoauthoritative collections:

The Mishnah or the codified text (AD 200

in New Hebrew script)

Gemara or commentary (about AD 300-

500, compiled in Aramaic script.


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MEDIEVAL PERIOD

Began at the dispersion of the Jewishnation, culminating about AD 500 andextended over the next thousand years.

Here, learned rabbi wrote treatises (in

Hebrew or Arabic), compiled codes, andthus perpetuated the traditions of thelaw. Maimonides is one of these rabbis; he lived

in North Africa in 1400s.

By this means, the common customs ofreligious and family life and commercialpractice were kept alive, though the racewas scattered in many countries.


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NATIONALIST PERIOD

From AD 1600

Nationalism in Europe amalgamated

all races who lived within given

territories and emphasized nationallanguages.

During this period, the Talmud was

critically studied and translated intothe various national language.


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CHINESE Legal System

Third earliest legal system of the world inorigin (before 2500 BC)

The only one that has survived continuouslyto datea period of more than 4000 years

Note: The Chinese were described as theworlds greatest pacifists. They werepatriotically exclusive and had never willinglyadmitted strangers. They were contented with

themselves, their ancestors, their history, andwith their place in the world. They survived asa people due to their strong clan and familystructure and their consequent conservatism.


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(cont.) CONFUCIUSChinas chief justice and

one of the worlds wisest men. About 500 BC

His philosophy, which is not a religion, coversthe whole range of personal morality andpractical politics. And for 2400 years, itpervades now Chinese life.

His philosophy rests on a passionate yet

rational respect for those conventions whichexperience of the past has verified.

He teaches filial piety, which is the skillfulcarrying out of the wishes of our forefathers.


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(cont.) GEORGE PADEOUXs theory of

government and justice underlying theChinese legal system: Since the dawn of its history, China has

believed in the existence of a natural order ofthings, or law of Nature, including all parts ofthe universe and adjusting themharmoniously with one another. This order of

Nature was not made; it exists and is its ownreason for existence. Humanity is a part of it,and must conform to it. And as the elementsin this order of nature are interdependent,whatever affects one element reacts on the

other also


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(cont.) CONSEQUENCE of Padeouxstheory:

1) This natural law does not yield precedence topositive law. Positive law ought to confine itself totranslating the natural law into written formulas. Ifthis translation is correct, the written law is good

and binding; but if not correct, then the writtenlaw is not binding.

2) A marked contrast of the Confucian politicalphilosophy with Occidental systems is that itsfundamental maxim is emphatically a

government of men, not law. The Chinese philosophy of government is that a goodruler makes a happy people.

Chinese political science relies on the wisdom anddiscretion of the ruler rather than on the text of laws.


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CHINESE Legal System (cont.)

LEGISTSa school of philosophers who arose afterConfucius (about 200 BC). Repudiated the doctrine of a government of men in favor of

government of laws.

But its dominance was brief and Confucius principle returnedand was enthroned in Chinese government and firmly

maintained that place during the next 2000 years. 3) Another notable consequence of the

Confucian philosophy is that conciliation andmutual adjustment are looked upon as idealelements of justice.

4) The subordinate part played by the letter of thelaw, and the legislation as such. The ruler shouldframe the laws to voice the vast sentiments andwants of the peoplenot to impose his personalwill upon an unwilling people.


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LIST OF CODES: Chow Li or Regulations of Chow (1100

BC)earliest code whose text is nowextant. Later, it was said to have been

burnt during the Burning of the Books. Tang Dynastys code of 500 articles (AD

640)

Tartar emperor Timur (grandson of KublaiKhan, about AD 1320) promulgated acode of 2500 articles. NOTE: None of these altered traditional laws

and customs of the Chinese.


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Kublai Khan introduced around AD 1269 analphabet and the laws above werepromulgated in this alphabet.

Ming Dynasty (about AD 1400)minister

Young Lo framed a new general code Manchu DynastyTa Tsing Lu Li or Code of

Tsing became law about AD 1650 andendured until the revolution of AD 1912. This work consists of:

First: LU (The Code Proper)the text which neverchanges

Second: LIconsists of the annual edicts and judicialdecisions, which interpreted the LU, made them flexibleand adapted them to progress, like the Common Law.


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HINDU Legal System

Introductory:During the last 3000 years, India had been

entered and dominated by alien races:Indo Aryans, Persians, Greeks, Turks, Mongols,

EnglishAfter WWII, India was granted her independence by

EnglandPersians and Greeks took booty and left no traces

Turks and Mongols brought Mohammedan law

English brought unity, liberty, and honest administration,but English law in India is mainly public law, preserving inprivate law the various native customs

Indo-Aryans or Hindus (the first to come to India) are theonly race that developed a native system of law.


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Two Branches of Hindu

System (A) BUDDHISM

(B) BRAHMANISM (or Hinduism)

Both are religion and law.


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(A) BUDDHISM

Simply means Enlightenment Founded by Gautama Buddha, born in Nepal

between 600 and 500 BC.

Buddhas basic teaching is the compet of

Nirvana, which means roughly the peace ofmind and soul that comes to man after hehas overcome three cravings: those forriches, sensual enjoyment and immortality.

In India, between AD 400 and 700, acomplete social and religious reaction tookplace. Buddhism was eradicated byBrahmanistic persecution (this is

questionable).


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(B) BRAHMANISM

Began in the days of the first Aryaninvaders as a kind of nature worship; itdeveloped into what is certainly the mostcomplicated theology known to mankind.

It holds that one supreme being,Brahma, exists in several ormanifestations and is the universal spiritwhich pervades everything.

The typical law-book of the Brahman-Hindi system is the famous Laws ofManu.

The most marked peculiarity of thissystem was the Brahman-Hindu rules offcaste.


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(B) BRAHMANISM (cont.)

CASTEis the institution which makesIndia unique, the device breaking upIndians into fixed categories that has noapproximation elsewhere in the world.

Every Hindu is born into a caste and hiscaste determines his religious, social,economic, and domestic life from the cradleto the grave.

No man may ever leave his caste, except tobe expelled.

It is impossible to progress from caste tocaste.

Marriage between castes is foorbidden.


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(B) BRAHMANISM (cont.)

19thCentury IndiaIndia was acongerie of hundreds of principalities;

in each one ruled independently a

maharajah.The justice of the king was in theory

personal. It was partly done by sending

judicial officials to go on circuit, but

special classes of cases were reserved

for the kings personal hearing and

decisions in the Audience Hall.


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GREEK Legal System

Secular in originnot conceived as part ofreligion emanating from a divine source

The Greek race emerges into history as ahundred or more local tribes, or clans, or city-states, each independent, and each based more

or less on democracy. No single unified Greeknation yet.

The Homeric poems, shows the king at the head;he was at once the chief priest, the chief judgeand the supreme warlord. BUT he was guided by

a Council of the chief men of the communitywhom he consulted; and the decisions of theCouncil and King deliberating together arebrought before the Assembly of the whole people(called the Agoraout of which democracy

springs).


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Greek Democratic Justice

Found in Homers description: The scenes depicted on the splendid

shield which Hephaestos made for

Achilles in the Trojan war wherein theparties plead their cause before the

assembly of freemen; the chief presides

as umpire, then the wise elders, skilled in

the law, propose various judgments; thenthe freemen acclaim the best one and

thus decide the case.


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Greek Democratic Justice (cont)

At Athens, the Agora, or marketplace, theAreopagus Hill, and the Pnyx Hill werethe chief places of interest for law andpolitics.

Usually, the Assembly meet on the hillcalled Pnyx where statesmen likePericles delivered their speeches, underthe warm blue Greek sky.

Areopagusa special place for certaintrials for homicide; it was also herewhere the Apostle Paul made his

memorable address to the people of


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The Trial Method

Was an advanced form of the earlyone in the tribal assembly, depicted by

Homer on the shield.

A jury list of 6000 or more names wasmade up.

For ordinary cases: a panel of 201

names drawn by lot, may suffice. For special cases: the panel of 1000

or 1500 or 2500 jurymen


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The Trial Method (cont)

System Instituted by Solon Here, Athenian trial was entirely in the hands of non-

professionals;

Presiding magistrate selected by lot;

Jurors were drafted from citizen body;

Any citizen could be prosecutor and the defendantconducted his own case.

Magistrates supervised the preliminary proceeding;

During trial, the magistrate was no more than a chairman ofa public assembly; no presiding judge to declare the lawauthoritatively;

No appeal The citizens were the whole courtjudges of law and facts

without control. No jury deliberation.

After evidence, all casted their votes in the verdicturn.


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The Trial Method (cont)

Thus, essentially JURY SYSTEMAnother practice of Athenian law was to

allow defendant when condemned topropose a lighter punishment than that

fixed by the accuser; and the judgeswere required to choose one of the twosentences (like what happened withSocrates).

However, it seems that the Greek had asystem of justice but hardly a system oflaw, because: no codes, no reasoneddecisions, no doctrinal treaties, noprofessional judges or jurist.


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ROMAN Legal System

Broad Sense: Roman law refers to theentire legal order of the Roman state,

from the time of the Republic to the

Roman Empire. It embraces public law, sacred law, private

law and customary law.

Restricted Sense: Roman law means the

private law governing private rights,interests, and transactions, excluding the

public law of Rome. It is in this sense

that Roman law is also known as Civil


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3 Periods in

the Development of Roman Law The Archaic Period or Infancy Period

from the founding of Rome to the

Twelve Tables (451 BC)

The Republican Period or YouthPeriodfrom the Twelve Tables to the

founding of the Empire (451-30 BC)

Maturity Period and Old Age orClassical Periodfrom the founding

of Empire to the death of Justinian (30

BCAD 565)


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To be continued...

Discussions on the Roman LegalSystem onwards will be next meeting

after the midterms.

Midterms August 8, 2011 Coverage: All reading materials up to the

Roman Legal System

Multiple Choice Questions (MCQs) andEssays


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GOOD LUCK!

BREAK A LEG!

GOD BLESS!


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CELTIC Legal System

Celts or Keltsdescendants of theprehistoric glacial people, who about 600BC invaded Gaul (now France andBelgium)and the islands of Great

BritainScotland, England and Wales,and Ireland.

Three Periods in the Celtic Legal System Political Independencebefore Julius

Caezarsconquest of Gaul and Britain

Surviving Branches of the Celtic LegalSystemthe Welsh and the Irish

Final Dissolution of the Welsh and the Irish

The Three Periods


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The Three Periodsin the Celtic Legal System

(cont.) Political Independence Druidism acknowledged a god that

delighted in bloodshed; it taught of theimmortality of the soul, and inculcated thecontempt of danger and death. The Druids possessed considerable administrative

power, for they kept the people in constant terror ofthem. They are the dispenser of justice and decidealmost all disputes, both public and private. Note how punishment may help in the administration of a

community.

Their power lay, not in physical or political force, but intheir influence as priests of religion and magic.

Since the Druids influenced the minds of the people, theRomans found no other way of securing their conquestsover any of the Celtic nations than by exterminating theDruids.

The Three Periods


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(cont.)

Surviving Branches of the Celtic Legal System IRELAND

1stPeriod: Heroic Age and Pagan Druidism The law is transmitted only by memory of the Brehon judges.

2ndPeriod: Christianity and formulation of the written rulesof law, though the efforts of St. Pathric.

3rd Period: Danish and the Norman invasions graduallyparalyzed all political progress, but the Brehon juristscontinue to practice their law.

4thPerioid: The political ruin of Ireland is followed by thedisappearance of the Brehon law.

WELSH Welsh Code written down about AD 900 this code has

traces of Roman law, specifically Justiniansfamous line: Three things the law enjoys upon all: to live honestly; to cause no

vexation or harm to another; and to render to every one his due.

The Three Periods


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(cont.) Final Dissolution of the Welsh and theIrish The end came by force of conquest, first of

Welsh. Llewellyn the Great tried to unite theCeltic tribal factions of the people andattempted to save the ancient laws of Walesthrough the Magna Carta.

However, its final extinction was the work ofthe Tudor Dynasty. Henry VIII united Walescompletely to England and decreed that onlyEnglish laws would apply even with Wales.

As to the Irish faction, in 1613, James I calledan Irish parliament, and this body wentthrough the form of declaring the Brehon law

abolished.


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SLAVIC Legal System

The Four Principal Slavic Nations: Russia, the Serbs, the Bohemian (or Czech), the Polish

Four Stages in Russias Legal Evolution: The establishment from 9th century of a ruling class of

independent princes possessing all the land and controllingthe people on the land.

The submergence of the country (13th Cent.) by theMongols giving new directions to govt.

The emergence (16thCent.) of the absolute rule of Moscowtsars and the final enserfment of the mass of people.

The passing of the old order and the establishment of

communism in 1917. Tolstoysdescription of the first three stages of the legal

history of Russia: Rules established by men, who havecontrol of organized power and which are enforcedagainst the recalcitrant by the lash, prison, and evenmurder.


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SLAVIC Legal System (cont.)

A real legal system arrived for Russiafifty years later under the wise andconscientious Emperor Nicholas I, whoauthorized Michael Speransky to

assemble a commission of jurists andcollected and printed the materials calledSvod Zakonofor collectionof laws.

March revolution of 1917 witnessed thetransition of govt from the Russian Tsarto the Kerensky provisional govt. of theintelligentsia to the rise of theBolsheviks, who established thecommunist government.


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SLAVIC Legal System (cont.)

The Three Essential Facts about the Kind ofGovernment the 1936 Constitution provided: 1st It is designed to guarantee the socialist

economy. The socialization is applied only towhat are called the basic means of production.

(Please, see p. 74 on ownership) 2ndThe Bolsheviks do not believe in what they

call divisionof powersin their govt. Power restsinto the Soviet President of the Supreme Council.

3rd The Civil Code of Soviet Russia was

adopted in 1922. The very existence of a civilcode in Soviet Russia is something of ananomaly, and is explained only by the fact thatthe abolition of private property is not yetcomplete.


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GERMANIC Legal System

Four Stages of the Germanic LegalSystem: Prehistoric Period of the Vikings & the

Goths

Period of Goth Migration south and westand their establishment in the provinces ofthe Roman empire, ending with theformation of the great Germanic empire

under Charlemagne. Fusion of races and later by the

localization of the law.

Transformation by Roman and Papal law

GERMANIC L l S t


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(cont)

Germanic justice, as it emerges into history,is characterized as purely secular.

The justice of the whole tribe was democratic. The settlement of disputes between clans, was

done at the assembly of the people, the Al-ting,

where all the free men, armed, meet periodically,by a lunar calendar. Then the courts meet on theHill of Laws where the parties to a disputepleaded their causes before the assembly. Thenone or more of the Law-speakers, venerable or

clever men, propounded a decision; then theassembly, by their shouts, or with clash of swordon shield, approved or disapproved theproposals of the law speakers for the moststeemed sort of applause was the clash ofweapons.

GERMANIC L l S t


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(cont) The Franks or freemen adopted a

system of laws known as the Lex

Salica or the Code of the Salic Franks.

The Chief Difference between:Roman Laws Salic Laws/

Laws of the Teutons

Were designed for the good of

the state as a whole.

Gave great attention to securing

justice for the individual.

GERMANIC L l S t


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(cont)

Code or Edict of the Lombardswhere the modern idea of atrust could be traced to.

AD 650the laws of the Goths and Romans were compiledand called Forum Judicum or Fuero Juzgo.

Charlemagnes first parliamentary degrees calledcapitularieswas established and sent his personal envoys

on circuit to inspect the course of justice. This personalenvoys were called adjustitias faciendas, and this methodserved later to develop the Anglican institution of trial by jury.

Emperor Maximillian in AD 1495 established the ImperialChamber of Justice, as a central court of appeal, andprovided that one-half of its sixteen judges should always belearned doctors of the new Roman law, the sun was settingon the power of the old Germanic schoeffen,or lay-judges inGermany, their last stronghold and the doom of the pureGermanic legal system was sealed.


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JAPANESE Legal System

1st Period (AD 600-1200) JushichiKempo or Seventeen Maxims of the

royal prince-regent Umayado or

Shotoku Taishi. The Seventeen Maxims of Shotoku are

essentially not rules of law, but a short

code of political and social morality.

Politically, they foreshadowed the consolidation

of the new territories under a single royal

power.

Socially, they represented the adoption of

Confucianism.



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(cont.) From 1200-1600, great feudal families grew

and fought one another. The rule of theintellectuals at the palace in the capital wasfinally shattered by the growing power of the

rich military barons, who gradually acquired asemi-independence.

In the 1100s, the palace intellectuals losttheir power. National sovereignty wasnominally left in the person of the Emperor ofKyoto, the western capital, but the completepolitical power was now vested in theRegency, based on military feudal tenure,and located in the East at Kamakura.



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(cont.) 2nd Period the Rise of the Shogunate

(1192). Minamoto Yoritomofirst typical figure of this

period; he sought to be named Military

Regent (Shogun). He created the Monjusho(Office of Inquiry and Decision), essentially acourt of justice.

Jo-Yei Shikimoku (Ordinance of the period Jo

Yei) a political code promulgated in AD1225. Its main purpose was to regulate thenew military-feudal regime, and it containedfew rules touching private rights.



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(cont.)

3rd

Period The Tokugawa Dynasty of theRegency (1600-1850) Regent Tokugawa Iyeyasu came into power in the early

1600s.

Under the Tokugawa Dynasty, Japan reached apermanent state of political equilibrium, economic

prosperity and social quiet. The Tokugawa Regency provided within its own

extensive domain a model of administration for the fiefsof the greater semin-independent barons. Japan thenenjoyed a complete peace, internal and external.

The Tokugawa Supreme Court of Yedo was given afederal original jurisdiction, for the suits between partiesfrom different provinces. It plays a confirmatory role inthe decisions of the barons court for death sentences.Often consulted with a view to uniformity of law. Yedolaws must be followed in all provinces.



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(cont.)

4th

PeriodEnd of Japanese Seclusion and Shogunate In 1853, Commodore Perry came with his American fleet

and demanded the rights of trading. Other nations thenfollowed.

Treaties were forged, where the Japanese gladly concededto the foreign nations the power and duty of extra-

territoriality, i.e., jurisdiction over the foreign nationals, asthe price for refusing general rights of settlementthroughout the land.

Because of the seeming subservience of the Regency tothe foreign nations, the powerful semi-independent baronsrebelled. Two great families or clans rose into prominence

the SATSUMAS and CHOSHUS, who abolished theSHOGUNATE, and resurrected the emperor as thesupreme embodiment of power.

A new emperor ascended to the throne, a BOY namedMutsuhito, who was reinstated in 1868 and who signed aCharter Oath. This is now called the MEIJIRESTORATION.



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(cont.)

In 1889, a written constitution was drafted byCount Ito, Japansgreatest statesman of the lastgeneration.

Note that until its defeat in World War II, Japathad for at least a thousand years been a military

state a totalitarian state, obsessed by what itconceived as a divine and imperial mission toconquer East Asia.

After its unconditional surrender to the Allies in1945, Japan has been placed under the

supervision of an administrative commission setup by the Allies with the end in view, amongothers, of democratizing Japan. The emperor has, however, been allowed to remain,

as the symbolic head of the nation.

ANGLO AMERICAN Legal


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ANGLO-AMERICAN Legal

System

(a) Common Law in England The foundations of the Common Laws were laid

during the reign of William of Normandy, but itwas during the times of Henry I that the formativeperiod of the Common law may be said to have

been ushered in. Up to the time of Edward I, we see the evolution

of the royal courts, whose judgments began tobuild up the Common Law, and the growth ofprocedure characterized by the use of system ofwrits, the introduction of inquest as a mode oftrial, the beginning of written pleadings andadvocacy.

Writsthe method by which litigation was drawninto royal tribunals.



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System (cont.) System of Equity began during the

reign of Edward I when petitions to theking were referred to the Chancellor.Because of the limited jurisdiction of the

common law courts, the king had to refersome cases to the Chancellor. Some Famous Maxims of Equity. 1) He who comes to Equity must come with clean

hands. 2) Equity will not suffer a wrong to be without

remedy.

3) Delay defeats Equity.

4) Equity looks to the intent rather than to the form.



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System (cont.)

The Chief Legal Events from 17th

to 19th

Centuryor the Flowering of the Common Law System: a) constitution developments such as the

inauguration of the sovereignty of Parliaments and itstransformation into a democratic body, theestablishment of the doctrines of the supremacy of

the law, independence of the judiciary and inviolabilityof civil liberties and the development of the famouswrit of habeas corpus.

b) the incorporation of the Law of Merchants intoCommon Law.

c) the establishment of stare decisisas a definite rule. d) the appearance of law reports.

e) the reorganization of the judicial system.

f) procedural developments.



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System (cont.) g) the organization of the law practitioners

into a dual system.

h) the appearance of other great legal

figures who exercised a great influence in

the development of the Common law.

i) the cospomolitanization and expansion

of this system.

j) the beginning of the codificationmovement.



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System (cont.)

(b) Common Law in the United States Remember that the US used to be divided into 13 colonies

under the control of England.

But in 1774, a Continental Congress, as representatives ofthe people of the colonies, declared their independence.

But the Common Law had followed the English colonies. At

present, except for the Louisiana, the system ofjurisprudence that now prevails in the American states isthat which has been derived from the Common Law ofEngland.

A decisive factor in the survival of the Common Law inAmerica was the influence of BlackstonesCommentaries.

Some Famous American Legal Luminaries: John MarshalChief Justice of the USSC 1801-1835, the first to

proclaim the doctrine of judicial supremacy.

Joseph Story a prolific textbook writer, especially on Conflict ofLaws.

Oliver Wendell Holmes wrote Common Law, an American bookon legal history or philosophy.

CATHOLIC (PAPAL) Legal


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System and the CANON LAW

AD 800-1200The Popes had begun to acquirea temporal authority under Pepin le Bref andCharlemagne, from the donations of territorymade by those princes, and they were nowgradually extending spiritual jurisdiction over allChristian kingdoms.

Interchange of Roles: Kings, dukes, and counts neglected their temporal

duties and shut themselves up in cloister, and spenttheir lives in prayers and penance.

Ecclesiastics were employed in all the departments ofsecular govt, and they alone conducted all publicmeasures and state negotiations, which of course,they directed to the great objects of advancing theinterests of the church, and establishing theparamount authority of the Holy See.



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( ) gSystem and the CANON LAW

(cont.) Pope Nicholas I (AD 859) proclaimed

to the whole world his

paramount judgment in appeal from the

sentences of all spiritual judicatories; power of assembling councils of the

Church, and of regulating it by the canons

of those councils;

the right of exercising his authority bylegates in all the kingdoms of Europe, and

the control of the Pope over all princes

and governors.



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(cont.) In AD 961, Otho the Great received the Imperial crown fromthe Pope. Thus, from that time on, the Emperors wereconsidered as the temporal head, while the Popes as spiritualhead, of all Christendom.

All Christian countries seemed to have been included in onegrand republic.

The Contest between the Church and the Empire began withHenry IV, emperor of Germany and Pope Gregory VII. The Pope here sought to raise the spiritual above the temporal

authority in all the states of Europe.

Innocent III at the beginning of the 13th century establishedthe powers of the Popedom on a settled basis, a positiveacknowledgment of the papal supremacy, or the right

principalitier et finaliter to confer the imperial crown. Without the Popesapproval, no emperor may be recognized as

legitimate. Its clergy were immune from the criminal justice of thestate.

Legislation covered thecradle to the grave.



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(cont.) Decretals of Isidore of AD 800s,papal supreme jurisdictionwas re-enforced here.

Decretum of Gratian where Canon law originated.Composed of the legislation and decisions of Popes, afteraccumulating for seven centuries in thousands of separatedecrees, rescripts, bulls, and council-resolutions. Compiledby a monk named Gratian at the University of Bologna in AD

1140. This created Canon (or papal) law as an independent system.

This has become a strong legal support in the Popesrivalry withthe Emperors.

Canon law began to be taught and became the legal buttress ofthe papal theocracy and remained the ruling code till the

Reformation. Under the Roman state, the religious laws the jus sacrum, jus

pontificiumwere not a distinct body of legislation.

The Church encroached more and more upon the jurisdiction ofthe civil courts.



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(cont.)

Three Parts of the Decretum ofr Gratian: 1stDistinctiones:treats of the sources of canon

law, councils and the mode of their convention,the authority of decretals, the election of theRoman pontiff, the election and consecration of

bishops, the papal prerogative, papal legates, theordination of the clergy, clerical celibacy, andkindred topics.

2nd Causae: discusses different questions ofprocedures, such as the ordination and trial ofbishops and the lower clergy, excommunication,simony, clerical and church property, marriage,heresy, magic and penance.

3rd is devoted to the sacraments of theeucharist and baptism and the consecration ofchurches.



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(cont.)

Corpus Juris Canonici a series ofcollections, which constitutes the official bodyof canon law, composed of the following:GratiansDecretum, Gregory IXsDecretales,the Sext, the Clementines, and the

Extravagantes of John XXII. The canon law attempted the task of legislating

in detail all phases of human life clerical,ecclesiastical, social, domestic.

The Church has not only its own code and its

specifically religious penalties, but also its ownprisons.

The canon law justified wars against the enemiesof religion and the persecution of heretics.



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(cont.) Rise of Patriotic Nationality and

Legislative Independence throughout the

West of Europe:

The reign of Edward I (AD 1300) was marked

by the rise of nationalism and unified

legislation.

Subsequently, the Reformers like Luther and

Calvin raised their voices in protest againstthe legalistic tyranny of the Pope. At

Wittenberg in 1520, Luther threw a copy of

the canon law, the one representing the

infallibility of the pope.



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(cont.)

Council of Trent attended by over 300bishops, ambassadors, cardinals, and otherdelegates. It covered 18 years. Its legislationranged over the whole system of Canon Law.But by the time this Council ended, the

Protestant seceders had broken the churchsuniversal power.

The national secular law in each country ofEurope was thenceforth to become supremeand exclusive. The temporal jurisdiction of the

papal courts was in time abolished by thevarious national legislatures. Notable here was the break of England under

King Henry VIII from the Roman Catholic Church.The King is the only supreme in earth of the

church of England.



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(cont.)

Codex Juris Canonici was promulgated byPope Benedict XV in May 27, 1917. Thiswork, unlike the old Corpus Juris Canonici, isnot a compilation, but a genuine codification

one of the modern worlds greatest

masterpieces of composition. Second Vatican Council was opened by

Pope John XXIII on January 25, 1959 andopened the Church to the world. The sameCouncil revisited the old Code and in 1977,

Pope Paul VI started the formulation of thenew Code. And on January 25, 1983, PopeJohn Paul II promulgated the present Code ofCanon Law, which has the force of laws forthe whole Latin Church.

MOHAMMEDAN Legal


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MOHAMMEDAN Legal

System

Is based on Islam, founded byMohammed (or Mahomet) on AD 600. Not Mohammedanism but Islam

meaning submissionto one God.

Islam aspired to be a comprehensive systemof human life and social order religion,morality, politics, and law.

Islams basis: Revelation, respects Hebrewtraditions of reverence for Moses and

Abraham, mission of Jesus of Nazareth. Central Thought in the Teaching of Mahomet:

There is no God but the true God andMahomet is his prophet.

MOHAMMEDAN Legal System


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MOHAMMEDAN Legal System

(cont.)

Sources of Islamic Law: 1stthe Koran (literally the book which

ought to be read) or word of God, as

written down by Mohammed;

2ndthe sayings and conduct of

Mohammed;

3rdthe treaties of jurist, elaborately

developing from those fundamentals thelegal rules applicable to all the affairs of

life.

Th d


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The end

God bless you!

the legal systems of the world

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