Origins of the Main Legal Traditions

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following the expansion of Muslim rule outside the Arabian peninsula in the 7th century AD

Is there really and Islamic legal tradition?

Arguably not, because…

 90% of Muslims are Sunni, Sunni scholars have no accepted hierarchy, and thus the shari’a has been a matter of dispute since the 8th century

 Many modern Islamic rulings are not shari’a laws, but siyasa (shari’a-compliant) laws

 Muslim majority states that attempt to write down some or all of the shari’a are being ahistorical

 Most Muslim-majority countries have essentially European-style legal systems

Séance 2 : Le 27/01

Lawyers

Common-law :

• Developed as a mediaeval profession

• Historically separate from law faculties

• Distinction of ’solicitor’ and ’barrister’ is now largely disappearing

Civil-law :

• Historically linked to the academic world

• Viewed as private agents, not officers of the court

Difference is that common law lawyers still feel the obligation to present all of the elements to court, while civil law lawyers as private agents, which means they’ll only present elements that are useful to them.

Common-law judges

• Mostly drawn from among senior lawyers (not a separate career path but more like an achievement)

• England has particular traditions of lay and part-time judges also. Another tradition : in England, 90% of cases (civil and criminal, like petty crimes) are handled by magistrates : they’re judges, not lawyers and are appointed with almost no legal training. But they have considerable power since they can give prison sentences. This doesn’t exist in any other Common-law country

• Appointments made under the authority of the government, but usually non-political. Historically by the Crown. Now, there’s an impartial commission that advises candidates, and the minister will appoint them. It’s important to appoint the right person because judges are appointed for life. They’re also independent : they serve justice, not the crown.

• Removal usually by politicians, but not for normally political reasons

Civil law judges :

• May be appointed at a far younger age (in the 30s for example), because judiciary is usually an entirely separate career path from lawyers

• Appointments, promotions and removals are usually an internal judicial matter

• Specific rules may apply to judges of courts with powers over constitutional law (constitutional courts for example : judges are appointed at different times for different terms and are appointed by political institutions etc … They’re appointed by the two chambers of Parliament in Germany.)

→ Technically, there’s no Constitutional court in France, the Conseil Constitutionnel is not a Court.

How is Civil law meant to be applied ?

• Relatively strict understanding of the separation of powers – hence judges should not ’make law’ by setting binding precedents : they apply law and that’s all.

• The key principle for interpretation is ’legislative intent’= what did the legislator mean ?

• Civil codes are, generally, written as pre-determined principles that should be ’deduced’ to individual cases.

Do Civil-law judges in fact have more power than that ?

• Legislation can be vague or inadequate – thus informal precedents are impossible to avoid

• Some jurisdictions have introduced – in theory or in law – acknowledgements of something like precedent. Because words need interpretation, it’s obvious you need precedents to know what kind of interpretation judges should use. (There’s a thing called jurisprudence constante in France, which is not binding, but it means that French judges will still acknowledge and observe precedents linked to the case)

• Most civil codes allow judges to call on additional sources for interpretation. Most civil law codes has a list of sources to which judges can refer for interpretation. They can also interpret the law according to current society norms if words aren’t enough.

How does the Nordic tradition differ from the Civil ?

• The written laws are not designed to be exhaustive or over-specific : open to interpretation

• Courts are permitted to interpret the law using ’general principles’ and ’analogies’

• Courts are encouraged to take inspiration from scholarly works, and from other Nordic countries. Nordic courts are explicitly allowed to refer to each other.

How does the Common law system work ?

• Judicial precedents, stretching back to the Middle Ages, are considered binding unless overridden by legislation

• However, the Courts can also alter precedents

• Legislation tends to be much longer and more specific than civil codes

• But historic differences from Europe are no longer so pronounced, because law is increasingly codified, and judges sometimes have to resort both to ’deduction’ and consideration of ’legislative intent’

How is Islamic law applied ?

• Most scholars now accept that the will of God should be deduced from a series of sources (in this order) : the Qur’an, the Sunnah (collected sayings of or about the Prophet), ijma (scholarly consensus) and qiyas (analogy, if there’s no specific law for the situation, you take a close one and think about how it would be applied in the case)

• Yet each case is regarded as unique, hence the discovery of God’s will may in reality involve an amount

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