1. Legal environment – The legal system establishing rights & duties
INTRODUCTION: PROFUSION AND VARIETY
There are hundreds of legal systems in the world. At the global level, international law is of great
importance, whether created by the practice of sovereign states or by agreement among them in
the form of treaties and other accords. Some transnational entities such as the European Union
have created their own legal structures. At the national level there are over 180 sovereign states
in the United Nations Organization. Many of these are federal or confederal, and their constituent
parts may well have their own law.
But, despite this great variety, it is important to begin by emphasizing one great division: that
into religious and secular legal systems. Each side of this split holds quite different views as to
law, in its source, scope, sanctions, and function. The source of religious law is the deity,
legislating through the prophets. Secular law is made by human beings, and one of its most
famous examples begins with the words 'We, the people'. It follows from this difference in their
source that religious laws are perceived to be eternal and immutable, while secular rules can be
changed by their makers. Religious law tells people what to believe as well as how to behave,
whereas secular law deals with our external actions as they affect others. In a religious legal
system disputes are usually adjudicated by an officer of that religion, so the same person is both
judge and priest. In a secular system, by contrast, the office of judge is separate, and is often
reinforced by guarantees of judicial independence. A further difference lies in the enforcement of
the laws: in a secular system sanctions are imposed in this world, and its severest punishment
(the death penalty) amounts to forcible removal from the jurisdiction. The sanctions and rewards
of a religious system may also occur in this world, but are often to be felt most keenly in the
next.
Nowadays there are few countries whose legal system is exclusively religious, though some
(mainly Muslim) aspire to this. By contrast a large number have secular systems, and this feature
may be built into their legal structure, as in the 1958 French and the 1993Russian constitutions,
or the very first words of the First Amendment to the American Constitution, which came into
force in 1789: 'Congress shall make no law respecting an establishment of religion'.
A number of other countries have 'dual' systems in which religious rules govern, and religious
courts adjudicate on, such matters as marriage, divorce, family relationships and possibly family
property, while a secular system with state courts covers the wider fields of public and
commercial law. This was the position in England until the 1850s, and is the case today
in Israel, India, and Pakistan, while in some African countries these more private areas are ruled
by local ethnic and religious custom. In these dual jurisdictions, the proportion of human activity
governed by one or the other system may well depend on the stage of economic and political
development of the country in question. This leads to a difficult area of enquiry, of which all that

2. can be said in this context is that in some countries a sophisticated secular system may well exist,
but only on paper.
A word should be added here about the place of law in human relations, for different peoples and
different epochs have taken very different views on the matter. For some law is an aspiration, for
others a blight. Some societies are proud to proclaim 'the rule of law'. Others see it as fit only for
barbarians and put their trust in the ethical or customary matrix of the community. For instance,
this seems to have been true of China both under the Emperors and in the years of the Cultural
Revolution (1966-76). What follows deals with positive legal systems, and not with the views of
a given time or people as to the place of law within society. Such matters are proper to a study of
comparative ideology, politics or sociology. At the same time, the reader should remember that
the underlying justification for the legal system is often perceived in broader terms than mere
utility. This is well illustrated by the Canadian Constitution Act 1982 which begins by stating
that 'Canada is founded upon principles that recognize the supremacy of God and the rule of law.'
CLASSIFICATION
Although each system has its own individuality, it is possible to group many of them into legal
'families'. The advantage of this is that, if successful, it saves time and energy in description or
prediction. Inevitably, of course, classification depends on the criteria used. In the past, legal
systems have often been grouped by geography, race, language, religion, or official ideology.
Here, it seems more useful to classify in terms of the systems' substantive features, and to devote
most attention to the larger families.
The result of classification will differ greatly depending on whether we concentrate on public or
on private law. With the former, our criteria would be the state structure and the relations of
government entities (including the courts) with each other and with the citizen, and the field
would range from constitutional law through administrative and tax law to the penal system. The
latter classification, more traditional but very useful in some respects, looks mainly at how a
legal system treats the law governing relations between private persons, including such matters
as their property, their testaments, marriages, contracts and so on. Thus a country may resemble
one family for private law purposes and another for those of public law. For instance, the private
law of England stems from the 'common law'. That of Scotland does not. But both are governed
by the same constitution which, unlike those of most common-law countries, is not written in
one document and does not limit the ultimate powers of the legislature.
CONSTITUTIONS
Constitutions differ widely, and for good reason. Some have to provide for a federal structure,
some, although unitary, include quite different legal systems within the one state (e.g. Britain,
Canada). Some have to handle serious internal ethnic, linguistic, and religious differences, while
others are written for a homogeneous population. Some are largely restricted to a set of

3. justifiable rules of law, while others contain manifesto-like proclamations and show a tendency
to the picturesque by, for instance, the adoption of a national animal (always attractive, but rarely
edible). Some are never meant to be taken seriously. A few are contained in no given text or
texts, notably in Andorra, Israel, New Zealand and the United Kingdom.
The differences in constitutional features have two different motivations. The first is practical:
obviously a federal document will contain material absent from a unitary one. The second feature
is the existence of value preferences prompted by national history. The constitution-makers in
different countries, or at different moments in the history of any one country, have quite different
preoccupations. The reason they are drafting a new constitution is a change in circumstances.
Thus all constitutions contain elements that are autobiographical and so idiosyncratic. Different
historical contexts have generated different preoccupations and priorities, and these in turn have
led to quite different constitutional structures. Even among those drafters who admired the oldest
enduring text which lies to hand - that of the USA - it is striking that, while its first three words
('We, the people') and its Bill of Rights may be often imitated, no one ever copies the structure of
the Constitution itself.
For these reasons the only generalizations that can be reasonably be made are the following.
First, constitutions aspire to regulate the allocation of powers, functions, and duties among the
various agencies and officers of government and to define the relationship between these and the
public. Second, no constitution, however well designed, can protect a a political system against
effective usurpation. Third, in many countries the holders of power ignore the constitution more
or less entirely. Fourth, even where constitutions work, none is complete: each operates within a
matrix of compromise, custom or caselaw. Fifth, most begin by identifying (at least on paper) the
constituent authority (such as 'the people') and often invoke the deity
(e.g. Canada, Germany, Greece,Ireland, Pakistan, Switzerland). Sixth, they usually separate the
legislative, executive and judicial organs of state. Seventh, they usually contain, or incorporate, a
Bill of Rights. Eighth, they often provide some method for annulling laws and other instruments
which conflict with the constitution, including the Bill of Rights. Ninth, they address the
international scene only in generalities and, in practice, confer wide powers on the (federal)
executive. Finally, they deal with the status of international law by either according or denying it
direct internal effect.
ADOPTION AND AMENDMENT
The idea of endowing a country with a single written constitution is relatively modern, though
now widespread, so that the UK is one of the rare exceptions. Furthermore in a large number of
countries the constitution follows some decisive event in national history: war, revolution,
independence, federation and the like. This ensures that methods of adoption vary widely. The
oldest and most prestigious - that of the USA - was adopted by agreement among the 13 states

4. followed by ratification by elected conventions within them; its Bill of Rights (technically, if
confusingly, called Amendments) was ratified by the State legislatures. By a seemingly similar
method, but in the very different circumstances of the defeat of Nazi Germany, the constitution
of the Federal Republic of Germany, finally approved by a Parliamentary Council and called the
'Basic Law', entered into force when notice of its ratification by representative assemblies in over
two-thirds of the Laender was published: on 23 May 1949. By contrast, one of the most recent
documents - that of the Russian Federation - by-passed the legislature (which the President had
dissolved) and was voted directly by the people on 12 December 1993. According to the official
returns, 54.8% of the electorate voted, of whom 58.4% were in favour. In between these two
methods are many other techniques such as that of the 1958 French constitution which involved
both approval by the legislature under procedure laid down by the existing constitution and then
by the people in a referendum.
Both legal and political importance attach to the methods by which a constitution may be
amended. They may divide the amending power among people, legislature, and executive, or
between a federation and its components. They may express basic values by declaring certain
features to be unamendable: the republican form of government in France andItaly, and in
Germany the basic human rights and the federal structure. Some constitutions specify that
matters like this may be amended only by referendum or by an entirely new constitution (e.g. the
new Russian document). In federal systems, amendments normally require special majorities in
the federal legislature followed by ratification by a special majority of the states. This is the US
provision, now adopted for some types of amendment by the Russian Federation.
A common method is to require a special majority in the legislature - two-thirds in Germany,
three-fifths in France, with similar systems in India and other Commonwealth countries (and this
used to be the pattern in the Soviet bloc). Another parliamentary alternative is to require a second
vote (Italy, Denmark, Finland). Finally, some systems divide the amending power between
legislature and people, by requiring a referendum either for certain types or methods of
amendment (Denmark, France, Ireland) or for any (e.g.Japan).
Unlike the systems just described, the UK constitution is indeterminate, indistinct and
unentrenched. It is found in no single constitutional document. The volumes entitled
'Constitutional Law' in the official edition of the 'Statutes in Force' print 138 Acts of Parliament,
while a quite separate volume on 'Rights of the Subject' gives another thirty-two, including what
is left of Magna Carta 1215. Furthermore many matters in written constitutions, such as the
procedure on a finance bill or a vote of no confidence, are governed entirely by custom,
convention and Standing Orders of the Houses of Parliament. The basic constitutional
instruments are presumably those of 1707: the Treaty of Union and Acts of Union of the English
and Scottish Parliaments. From 1800 Ireland was also part of the UK until the Ireland Act 1949
finally admitted that it was no longer part of His Majesty's dominions. Since 1922 the UK has in
effect consisted of Great Britain and Northern Ireland.

5. The British constitution is indistinct in that there is no way to tell whether 'ordinary' laws are in
conflict with those forming part of the constitution (although since 2 October 2000 the courts
may declare that a particular statute (though still valid) is incompatible with theHuman Rights
Act 1998. The constitution is unentrenched in that any element may be changed by an Act of
Parliament passed in exactly the same way as any other piece of legislation.
FEDERALISM
In federal constitutions, listed powers are often allotted to the center, with the residue being left
to the constituent parts. In practice the main powers of defence, taxation, and commerce go to the
center, and federal laws override others. The constituent parts are protected, at least in theory, by
representation in the upper house and by their own powers of governance in their territories. In
this regard, the Russian Federation continues the USSR's system of a multi-level system of
constituent parts to accommodate the polyethnic mix, though the old secession clause is gone.
Broadly speaking the component entities retain the relative status accorded to them on paper
when they were parts of the RSFSR which was itself within the Soviet Union: and the roots of
the divisions are more a matter of geography and ethnic history than of politics.
The UK is not a federation, but it embraces four different legal systems: of England and Wales,
of Scotland, of Northern Ireland, and - for general matters such as tax and for international
purposes - that of the UK. In addition, the British government is responsible for the defence and
international relations of the Channel Islands and Isle of Man, which are not part of the UK.
Their citizens are not represented in (and therefore not taxed by) the UK Parliament, their basic
legal system is not that of the mainland and, with their consent, laws are made for them by the
Queen in Council (i.e. the British executive).
GENERAL CONSTITUTIONAL FEATURES
Although constitutions vary greatly in length, usually the greatest detail is devoted to legislature
and executive and the relations between them. Federal systems naturally have a bicameral
legislature. But so also do many unitary systems with the lower house directly elected and the
upper composed of those perhaps representing rural interests (France) or possessing special skills
(Ireland). In most countries (but not the USA) the lower house can ultimately override the upper.
Two widespread patterns are those of the presidential and those of the parliamentary system. The
first fuses ceremonial and political power into one office, with its incumbent elected directly and
quite separately from the legislature: it is thus quite possible (and in the USA, common) for the
President to be of one party and a majority of the legislature of another. It separates executive
and legislative powers so that neither body can dissolve the other: the President is removable
only for grave crime, in which the legislature acts as a tribunal. The President nominates

6. Ministers for confirmation by the legislature, but there is no collective cabinet responsibility. The
President usually has a veto over legislation, which may be overridden only by special
parliamentary majority. On the other hand, the crucial power to tax remains with the legislature.
The new Russian structure embodies several of these features, but expands the presidency in a
number of ways. First, following a tradition going back to the Tsars, the office of the President is
given wide power to rule by edict (ukaz). Apart from the need to comply with the constitution
and with federal legislation, this power seems virtually unlimited. Second, the President appoints
the prime minister (with the consent of the lower House) and may dismiss the government. As in
the US, the Russian President may veto legislation, but can then be overridden by special
majority. Finally, the President can dissolve the lower House and call new elections if it thrice
rejects his or her candidate for premier, or if it passes a motion of no-confidence in the
government.
In the parliamentary system, the Head of State is distinct from the head of government - called
Prime Minister, Premier (or, in Germany, Chancellor). The Head of State may be a hereditary
monarch or directly elected President, but the premier is not directly chosen by the electorate, but
appointed from the majority or coalition group in the legislature. The premier and other ministers
have no fixed term of office but can in principle be forced to resign by parliamentary vote of no
confidence in the government. This is usually balanced by executive power to dissolve the
legislature and call new elections (although there may be some protection against hasty or
repeated dissolutions). The premier and ministers dominate in two directions. First, although on
paper the Head of State's powers look impressive (convoke the legislature, promulgate laws,
grant pardons etc) in practice these are exercised on the instructions of the government. Second,
the executive controls the legislative timetable and usually has the exclusive power to introduce
finance bills.
Some systems are a mixed parliamentary/presidential structure. For instance in the France the
President is far from being merely a titular Head of State. Since 1962 he or she is directly elected
by the people, appoints the premier, has emergency powers, and signs the regulations emanating
from the executive's very extensive lawmaking functions. In association with the government he
or she can present bills to the people to enact by referendum, thereby bypassing the Parliament,
and can dissolve the National Assembly and call new elections.
THE JUDICIARY
When it comes to the judiciary, separation of powers is apparently taken quite seriously,
although in England this is obscured by the fact that the upper House of the legislature has the
same name as the highest court, and its Speaker (the Lord Chancellor) is the senior judge. In
many systems, judges are independent and irremovable. In Russia this is expressly stated, but is a
frail novelty. In the USA and UK it is not stated but is the case.

7. The only topic which merits brief discussion here is the relation between the constitution, the
courts, and the legislature. The USA is virtually alone in allowing any court of general
jurisdiction to decide matters of constitutionality. Normally such questions are for a Supreme
Court or special Constitutional court. The French innovation allows bills to be referred only after
they have passed through Parliament and before they are promulgated by the President. In
England a court can examine the validity of a duly enacted statute unless it conflicts with the law
of the European Community; the same may be true of Scottish courts, although some say they
could examine UK statutes for conformity with theAct of Union 1707. Since October 2nd 2000,
when the UK Human Rights Act took effect, English courts are able to declare a statute
incompatible with the rights enshrined in the Act. This does not invalidate or render the statute
ineffective: it is then up to the executive and ultimately the legislature to decide what to do about
the offending legislation.
EMERGENCY POWERS
The greater the constitutional commitment to a Bill of Rights, the more difficult it is to frame
emergency powers. On the one hand the executive must be permitted to take emergency action;
on the other the emergency power should not be capable of being used to subvert both the
legislature and the Bill of Rights. The usual safeguard is to forbid the executive to use
emergency powers to suspend, or curtail the power of, either of the other branches of
government. Whether such provisions are effective in any given country is a matter of politics,
not law. In the UK a permanent statute permits the government to proclaim a state of emergency,
but regulations are subject to Parliamentary scrutiny. Special powers to deal with threats to
security in Northern Ireland have been on the statute book for most of the twentieth century. The
statutes restrict freedom of association and confer wide powers of arrest without warrant and, in
Northern Ireland, limit the use of release on bail and jury trial. They are subject to annual
renewal by Parliament.
HUMAN RIGHTS
The older pattern of constitutional protection of human rights is usually expressed by a negative:
Congress shall make no law abridging the freedom of the press; the right to keep and bear Arms
shall not be infringed; the right to be secure shall not be violated; no person shall be deprived of
life, liberty, or property without due process of law. This century has seen the addition of
positive claims on the state - to education, employment and so on - and entitlements against
discrimination on the grounds of gender, religion, nationality and the like. Such provisions are
often declared to be entrenched and to bind legislature, executive and judiciary. To what extent
these Bills of Rights are effective is more a matter of political power, than of legal technicality.
COMMON LAW AND CIVIL LAW

8. On looking at the historical development and substantive features of the legal systems of the
world we can see that many of them fall into one of two families. In the whole of human history
only two peoples seem to have founded a secular, comprehensive, enduring, and widespread
legal system: the Romans of the Ancient World and the Anglo-Normans of the Middle Ages. The
pedigree of the civil law goes back to Ancient Rome, although the later customary family law,
and the canon law of procedure have also marked the system. The Common Law world begins in
England. Of course within each family there are major differences between individual members,
but each is still quite clearly not a member of the other family.
The best way to explain the main elements of the Civil and the Common Law families and to
compare and contrast the two is to look at the following features.
BEGINNINGS
The Common Law was conceived in 1066 and born of a union between older Saxon law and the
custom of the Norman conquerors. The Civil Law was older then than the Common Law is now.
NURTURE
The Common Law was nurtured in London lawcourts, by judges and barristers. The older
Roman Law was developed - to an important extent - by jurists, who were not practising lawyers
but public-minded citizens. It was they who strove to expound, explain and adapt the ancient and
sporadic legislation and the edicts of the officials; the high-point of their contribution occurred in
the decades around 200AD.
SPREAD
The Common Law spread only by conquest and colonization: no one ever accepted it freely (and
the countries of the former Soviet bloc are taking their models from the civil law, not the
common law). The Roman part of the Civil Law, preserved in Justinian's collection of 533AD,
was rediscovered in the 11th century, embraced by the University law schools of northern
Italy (see also here), and spread from them throughout continental Europe. From there, and like
the common law, it went to the New World and to parts of Africa by colonization. But,
especially in the 19th century, the French and then the German versions were selected as models
by countries in the Middle and Far East.
LANGUAGE
Although originally written in Latin and spoken in Norman French, the language of the Common
Law today is virtually only English. Wherever some version of the common law is in force, the
native or official language of the country is English. The legal vocabulary, however, is likely to

9. be markedly technical if not arcane and to contain much dead French and Latin. By contrast, the
Civil Law is found in most languages.
MAKERS
The main creators of the Common Law are the judiciary: that is to say the matrix, the basic
operating system, is laid down by caselaw. Recruited from the ranks of successful practising
lawyers, the judges speak with individual and distinctive voices: they lay down the law. The
great names are well known in common-law countries, and in the USA and Canada the highest
court is an institution of enormous power and prestige. In civil-law systems, at least until very
recently, judges played the comparatively minor role of settling the dispute in front of them.
They did not make the rules of the system, and their decisions are not cited in later cases.
Appointed to the Bench in their middle to late twenties, they are civil servants who, in principle,
rarely sit alone but in groups of three. They are trained to produce just one decision - that of 'the
court' - written in the dry laconic prose of a bureaucrat.
LEGISLATION
Of course the modern countries of both systems produce large amounts of legislation. But that of
the common-law countries tends to be piecemeal. Save for the constitution, and fiscal matters,
basic principles are not enacted (except as codifications of existing caselaw in such statutes as
the Partnership Act). The typical statute merely adjusts some detail of the rules laid down by the
courts. In complete contrast, modern civil law systems tend to think of themselves as 'codified'.
The word 'code' in this context means that a whole area of law is laid down in one legislative
document which aims to provide a closed, coherent and consistent set of propositions which, if
used in good faith, can be applied to solve any dispute in that area. The most obvious example is
that of a criminal code. Historically, however, the most influential models have been the civil
codes of France (see also here) (1804) and Germany (see also here) (1900). These deal with non-
criminal private law, that is the rules on persons and family, property, wills and intestacy,
contracts, torts and so on. Such codes also provide the general pattern of thought in the whole
legal culture, acting as a default system for gaps elsewhere (for instance in the laws regulating
employment or the environment). So important are they that a French lawyer will call the Civil
Code 'le droit commun' (the common law) and will aver that French law is codified. It is not:
administrative law and conflicts law are found in no coherent code; but the assertion illustrates
the impact of the great Civil Code.
PRECEDENT
Where the basic principles are contained in an enacted code, this is the source of the law. Judicial
decisions do not make law because they do not need to. So, for instance, the Austrian Civil Code

10. 1811 - which lays down the basic rules of private law - can sensibly provide: 'Decisions in
individual cases and the opinions handed down by courts in particular lawsuits never have the
force of law; they cannot be extended to other cases or to other persons.' ('2) This approach is
fortified by the historical fact that civil-law judges did not see their job as creating law, the
professional fact that they are career civil servants, and the political fact that it is thought more
democratic to entrust lawmaking to the elected representatives of the people. Common-law
perceptions are quite different. Historically, the judges made the law. Furthermore, to this day
the legislator in common law countries does not lay down the basic rules of the legal system. But
they are needed, and so a notion of precedent comes into being. For instance, the English
parliament has never defined murder, never laid down that you must keep your contracts, or pay
compensation for damage unlawfully caused to others. Since such definitions and rules are
necessary, courts and lawyers can find them only in earlier caselaw. And since it would be
absurd and unfair if judges could re-make the basic law of murder or of contract in any case
before them, a rule of 'precedent' binds them to the law as declared by higher courts in their
jurisdiction. This means that, in deciding a legal issue, the common-law judge must come to
terms openly and honestly with any rule laid down by precedent, just as a civil-law court has to
face up to the rules laid down by the legislator. The doctrine of precedent is an operating rule of
a common-law system: so the rule itself was never laid down by a legislator. It is a judicial
creation and can be amended or adapted by its makers. So in England, for instance, the highest
court (the House of Lords) held in the 19th century that it was bound by the law laid down in its
own prior decisions. In the 1960s is amended that rule and gave notice that it was now free, to
change its mind. Lower courts, however, are bound by the highest court's rulings on matters of
law.
FACT
Legal disputes are as much about fact as about law. The work of the lower courts, in particular, is
very largely taken up with determining issues of fact. The common law and the modern civil law
both developed in territories where such matters were decided by ordeal, oath or battle. On
discarding these methods, the two systems took different paths. The judges who built up the
common law system were few in number, and left the hard work of fact-finding to non-lawyers:
the jury, originally of neighbours who might be thought to know the background, and then of
disinterested strangers empanelled to hear the evidence and decide. Nowadays only the USA
makes much use of the jury for non-criminal matters (as required by the VII Amendment), but its
ghost rules the procedure of all common-law countries. The very word 'trial' suggests a single,
continuous and relatively short session in which all the evidence is presented to a jury who knew
nothing about it beforehand. Similarly, there is no need for the judge to be acquainted with the
case before the trial begins. The proceedings are oral, since that is the quickest and most
effective way of conveying information to a number of laypersons. And their verdict is difficult
to overturn, since an appellate court has not heard the evidence directly nor seen the witnesses in
person. The civil law systems, by contrast, have always left the task of finding the facts to a

11. professional judge. This has a number of consequences. First, there were always far more judges
in civil- than in common-law countries. Second, the judge could be given more control from the
outset of the dispute in deciding which witnesses to call and what questions to put to them.
Third, the procedure could be more sporadic, spread over a number of sessions, and reduced to
writing: the civil-law word often mistranslated as 'trial' is le procPs, der Prozess - a better
rendering is 'the proceedings'. Fourth, the rules of evidence can be flexible, since a professional
judge is presumed capable of accurately assessing testimony. Finally it is easier for a higher
court to correct or revise a decision.
STRUCTURE
One result of the above features is that in common-law countries the legal system is not
organised in a coherent and clear structure. Its development tends to be incremental and
casuistic, and it is not easy for the foreign lawyer to approach. Civil lawyers, on the other hand,
lay great emphasis on system and structure. Furthermore, they tend to follow similar patterns in
their organisation of legal topics, and once these are understood it is relatively simple to locate
the law on any given topic.
INCIDENCE
Some version of the common-law is found today only in places once occupied by the British,
among them Ireland, the USA, Canada, Australia, New Zealand, India, Pakistan, Kenya, Uganda,
Zambia, Nigeria and Ghana. But (except for the special case of Israel) no country which has the
common law seems able or willing to get rid of it.
So far we have spoken of the Civil Law in general, in comparing it to the Common Law. Within
the former family, however, there are two great sub-branches. For one of them the French
approach has largely been the model, for the other the German. The French have, directly or
indirectly, influenced Belgium, the Netherlands, Mauritius, Quebec, Louisiana, Italy, Egypt,
Algeria, Tunisia, Morocco, Sub-Saharan Africa, Spain, Latin America. The German model was
followed later in such countries as Japan, Greece, Thailand, Taiwan, Portugal, Brazil.
Some systems, while recognisably those of the civil law, have rather gone their own way in the
organisation of their private and commercial law, for instance Austria (1811) and Switzerland
(1907, 1911). Finally there has been much rethinking of the heart of private and commercial law
in Quebec and the Netherlands and both have recently adopted an entirely new Civil Code.
Those countries of Eastern Europe which, before they became Soviet satellites, had their own
civil-law systems (such as Poland, Hungary, and of course the German Democratic Republic)
have turned again to their earlier tradition.
OTHER SYSTEMS

12. Outside the two large legal families are a number of systems, some relatively easy for a Western
lawyer to understand, others much more remote.
'MIXED' SYSTEMS
In the first group are countries with a 'mixed' system influenced by both civil and common law.
The older uncodified civil law of Holland is the basis of the Roman-Dutch law of South Africa,
Zambia, Namibia, Lesotho, Swaziland, Botswana and, on the other side of the ocean, Sri Lanka;
it is marked by a rich juristic literature stemming from Hugo Grotius (de Groot) in the 17th
century. But their long contacts with Britain mean that their public law and systems of court
procedure owe much to the common law.
Scotland, Louisiana, Mauritius and Quebec are examples of a private law based on older civil
and customary rules (uncodified in Scotland) struggling to endure in a common-law
environment. Israel has a system all its own, where the older Ottoman and British mandate layers
are now overriden by a modern system. It has no single constitutional document, but much of the
modern law combines the broad legislative simplicity of the great codes of civil law with the
careful transparency of the common-law judgment.
NORDIC EUROPE
The legal systems of Denmark, Finland, Iceland, Norway and Sweden do not fit neatly into the
civil-law pattern. Their original Germanic public and private law was collected in legislative
form long before the rationalising fashion of the French model: in Denmark (1683), Norway
(1683), and Sweden-Finland (1734). Marked by relatively small populations with a high standard
of living, economic efficiency and the ideals of the modern welfare state, they have adopted
much uniform legislation especially in the fields of commerce and family law.
SOCIALIST LAW
Until recently, the USSR and its satellites proclaimed that their socialism was producing an
entirely new form of law, not to be judged by or even compared with the older systems. This
view was said to be the scientific conclusion of a Marxist analysis. Even in those days, however,
the systems' documents looked, on the surface, familiar: constitutions and civil codes many of
whose rules bore - at least on paper - a strong resemblance to the traditional provisions.
The USSR's peaceful disintegration into 15 sovereign states has provoked much activity in
fashioning new structures. Most of the states by now have a new democratic constitution and are
drafting the rest of the legal system. Among the last acts of the old USSR was the enactment of a
comprehensive framework of Basic Principles for private law. It was used in Russia as an interim
instrument until the Civil Code of November 1994. In time the statute book will probably look

13. much like those of the civil-law German-speaking countries. More problematic is the personnel
to run the system, in the shape of lawyers and, above all, of judges who are well-trained, wise,
and honest.
From its inception in 1949, the People's Republic of China's declared aim was to attain socialism.
It abrogated all earlier legislation and during the next decade much of the formal law appeared
inspired by Soviet models. But the 'Great Leap Forward' of 1958 emphasised ideological
leadership, law was denigrated and degraded during the Cultural Revolution (1966-76), and it
was not until the 1980s that something resembling a recognisable legal system began to appear.
Under the 1982 Constitution (see also here), China - despite its size - is not a federation. The
People's Congress is the named legislator and the 'executive' is the State Council, although much
power remains with the Chinese Communist Party. The pre-Cultural Revolution legal structure
has been partly resurrected, and a legal framework of codes enacted. The Basic Principles of
Civil Law contain many provisions that would be familiar to Western jurists. The actual
functioning of the system, however, is affected by the persistent attitude that makes law
subordinate to the decisions of central and local political authorities.
ISLAM
The number of Muslim countries is growing, but the main common feature is the Islamic religion
which aims to cover all areas of life, not merely the spiritual. It thus has the features of a
religious system of law, as described above. In its strongest formulation, some Islamic scholars
state that law cannot exist outside religion and therefore the state has no power to legislate. But
in practice the religion is found in countries with very different histories, whose formal legal
systems vary from the absolute sovereignty of some Gulf states through the French and Swiss-
influenced codes of Egypt and Turkey, the common-law patterns of Pakistan and India, the
Soviet structures of the central Asian republics, to the revolutionary councils and tribunals
of Iran.
HINDU LAW
Unrivalled in age and continuity, the Hindu law found
in India, Myanmar, Nepal, Pakistan,Malaysia and parts of East Africa is contained in a literature
which is vast, complex and seemingly impossible to summarise. Its laws and customs are derived
from sages of the past who were themselves taught by a creator, it preaches the birth, death and
rebirth of living things, and its precepts cover many more activities than does any secular legal
system. In the countries mentioned, however, it governs only the personal and family relations of
those involved and its family law has been codified and much amended, especially in India.
Nonetheless it can affect the lives of some 450 million people.
CUSTOMARY LAWS

14. In many parts of the world unwritten local or tribal custom sets the standard of behaviour and
provides for conciliation and dispute settlement. Most of the African countries, for instance, have
a formal constitutional and commercial law inspired by French, Belgian or British models but
remit the relations between private individuals to the appropriate customary framework.
CRIMINAL LAW
Crimes are wrongdoings seen from the point of view of the society in which they occur: the
convicted wrongdoer may be punished. Torts include the same wrongdoings seen from the point
of view of their victim: the wrongdoer may be ordered to pay compensation. Sins include the
same wrongdoings seen from the point of view of a faith; they call for repentance and atonement.
Thus all three systems agree in condemning the most common acts of wickedness - murder, rape,
robbery, violence, theft and the like. Once such acts occur, however, the secular responses seem
in practice weak. Relatively few crimes are solved, few criminals convicted. Almost never are
they made to compensate their victim.
Nonetheless many societies attach great importance to a system of criminal justice: laws which
define crimes and provide the sanctions; procedural rules for establishing guilt in a court; and a
set of methods and places of punishment and rehabilation. Furthermore the types of actions
declared to be criminal are, in all major matters, much the same everywhere.
As with the area of the ordinary non-criminal private law, the system in the 'civil law' world has
developed from two main sources: first the Napoleonic codes of penal procedure(1808) and
penal law (1810), and then the German penal and procedural codes (1871, 1877). A key figure in
the criminal procedure of many civil-law countries is the juge d'instruction who supervises the
pre-trial stages. The use of a jury is uncommon save for very serious crimes, though Russia is
introducing the system. On the other hand the first instance tribunal often comprises one judge
and two lay persons, all of whom deliberate together and decide on guilt and sentence. Another
common feature (at least in theory) is the presence of the victim as 'civil plaintiff', so that the
same court can convict the accused, assess the victim's injury or damage, and order the accused
to pay compensation.
Countries of the 'common-law' world began from the English criminal law but, unlike England,
now normally have a comprehensive and coherent penal code (the British parliament has never
defined murder: this has been left to the courts). A typical feature of these 'common-law' systems
is that, for all save relatively minor offences, the decision on guilt or innocence is taken by a jury
of lay-persons selected for that case: this has a profound effect on the conduct of a trial and the
presentation of evidence. Another feature is that the victim who seeks compensation must start
another lawsuit before another court.
Whatever their origin, most legal systems agree on certain basic premisses. First, that no one can
be guilty of a crime unless the offence is defined as such beforehand, and the conviction arrived

15. at by a lawful procedure. Inherent in this is the requirement of clarity in criminal law, a
prohibition against its retrospective effect, and certain notions of 'fair trial' and the availability of
legal representation. Second that no one can be prosecuted twice for the same thing. Third that
deliberately criminal conduct can be punished although it did not succeed - it is a crime to
attempt a crime, or to conspire with others to commit one.
The fourth common premiss is harder to explain. The essential ingredients of a crime contain
both a factual and a mental element. The first covers certain (not involuntary) human conduct in
certain circumstances, and sometimes with certain consequences: for example stealing involves
taking someone else's property; on a charge of homicide the prosecution must prove that the
victim is dead. The second means that it must normally be shown that the accused deliberately or
recklessly did the forbidden act. The important point here is that, as a general principle, mere
carelessness (or stupidity) is not a crime calling for punishment, but at worst a tort calling for
compensation. Thus if you make off with my raincoat, honestly thinking it yours and not even
seeing the risk that it might not be, you are not a thief: you did not deliberately or recklessly
intend to take someone else's property. Of course if my name is marked inside it then you may
have been careless, in which case you may owe me compensation. But you are not a criminal:
stealing is dishonesty and you were (though negligent) perfectly honest. To this general principle
there are important exceptions: careless driving is an obvious example and, where death is
caused by gross negligence there may some homicide charge less than one of murder.
Furthermore in many systems a number of (relatively slight) offences may be committed without
any mental culpability at all. The reasons given for this include the need to protect the public and
the difficulty of proving any mental element. Examples include the use of unroadworthy vehicles
on a public highway.
Most systems accept that criminal liability is not to be imputed to certain classes of people: the
very young or persons under severe mental illness. Systems also recognise a number of
exculpating or mitigating circumstances such as self-defence, provocation, suicide pacts and the
like.
PRIVATE LAW
Private law is the name commonly given to that vast area dealing with the legal relations
between persons. It covers matters of pure status (marriage, divorce, kinship and so on); matters
involving assets of some sort (property, succession, contracts); and commercial activities in the
wider sense. Its essential feature is that the participants are presumed to be juridically equals
(unlike the public law structure where relations are hierarchical) so that one cannot give orders to
another, unless so authorised under some previous contractual or family arrangement. Its
essential technique is that much of it is not automatically binding (jus cogens in lawyers'
language) but serves to cut down the cost of legal transactions by providing a set of patterns

16. which citizens may use if they wish. For instance the intestacy rules operate only if a person dies
without having made a will. The rules on sale, lease, loan, partnership and so on are there as
models which can be adopted in full, or modified if the parties so desire.
In countries of the Civil Law group these three areas of status, assets, and business may be dealt
with in separate codes of Family Law, Civil Law (using the word in a narrower sense) and
Commercial Law. In the common-law world the basic system is laid down by caselaw, although
there are many modern statutes which often re-state and systematise the work of the judges.
Despite the many differences on the surface and in particular detailed rules, the overall structure
of private law in both civil and common-law systems can be stated quite simply in a formula
derived ultimately from the Roman jurists: private law deals with persons, property, obligations
and liability.
PERSONS
Private law defines who counts as a person able to enter into legal relations and deals with
their legal capacity (so as to protect the very young or the mentally ill). Since the abolition of
slavery, all human beings count as persons. Furthermore, these natural persons may set up other
'artificial' legal persons such as associations, foundations, and - most important -
business corporations.
PROPERTY
All these persons may own property and hold it for its own sake (house, clothes etc) or as a
business or investment (office blocks, factories, shares, savings accounts). Only the socialist
systems attempted to prevent this second function of property by forbidding private persons to
own 'the means of production'. The property involved may be tangible, and is often divided for
legal purposes into immovable and movable (or 'realty' and 'personalty' in the obscure jargon of
the common law). It may also be intangible, such as debts in the hands of a creditor, stocks and
shares, copyrights, patents and so on. If the owners have full legal capacity (i.e. are sane adults)
they may normally deal with their property as they please, subject of course to rules of public
policy, zoning regulations and the like. They can deal with their property during their lifetime or
by will, although many systems ensure that some of the deceased's property goes to near
relatives.
OBLIGATIONS
Persons may incur obligations voluntarily by entering into a contract - for instance to get a job,
buy a house, borrow on the security of a mortgage, take out an insurance policy. They also -
whether they like it or not - incur the obligation imposed by law (the law of tort) to compensate

17. others for unjustified harm caused them deliberately or carelessly. Likewise imposed by law are
the duties which stem from family relationships.
LIABILITY
The structure of private law is sealed by the following rule, now almost universal: a person must
answer with his or her property for performance of all obligations. So, if the worst comes to the
worst, most of a debtor's assets can be taken by process of execution. Human beings can be made
bankrupt, and corporations liquidated.
Rights and duties are two phases of the same thing. Rights are considered to be essential for the
expansion of human personality. They offer to the individual a sufficient scope for free action
and thus prepare ground for self-development.
Although rights arc of great significance in a democratic stale yet they become meaningless in
the absence of duties. Rights involve obligations as well.
An individual has rights so that he may make his contribution to the social good. One has no
right to act unsocially, man's rights imply his claims on society and duties indicate the claim of
society on the individual. This means that an individual owes to the society certain duties as he
obtains rights.
According to Prof. Laski there is a four-fold connection between rights and duties.
1. My Right implies Your Duty:
Every right of an individual involves a corresponding duty of others. For example, my right to
life implies that others should give protection and security to my life.
My right to move about freely implies a corresponding duty resting on others that they should
not interfere with my free movement.
2. My Rights imply My Duty to admit a similar Right of others:
The conditions of life which I need for myself arc also needed by others. This indicates that
every right is a duty in itself. If an individual exercises a right, he must bear in mind that the
same right belongs to others as well.
If I have the right to freedom of speech, it is my duty to see that I may not be a hindrance in the
free exercise of this right by others.
3.I should exercise My Right to promote Social Good:
A person He guarantees the rights to the majority in the society to remove the should not abuse
the right given to him by the State.

18. For example, if he uses the right to freedom of speech for spreading communal bitterness or
society cannot deprive man of these rights; these are inherent and to preach violence and
anarchy, it becomes an act counter to the social alienable rights, good. The state will then be
justified in depriving the person of his right if he has abused it.
4. Since the State guarantees and maintains My Rights, I have the Duty to support the
State:
The state is the agency for social good and it is the duty of an individual to perform ones duties
honestly.
The above-mentioned relations between rights and duties, there for clearly prove that rights and
duties go hand in hand. A healthy civic li] is impossible without the co-existence of rights and
duties. Rights without duties have no meaning and duties without rights have no sense.
The Constitution of India clearly defines the responsibilities of Indian citizen, their Fundamental
Rights and Duties. Part II of the Indian Constitution covers the clauses on Citizenship.
Fundamental Rights are covered in Part III of the Constitution, while the Fundamental Duties are
written in Article 51A. The Constitution, in a way, make the citizens aware of their core rights
and responsibilities through the articles dealing with the fundamental Rights and Duties. Article
5 to Article 11 of the Constitution include the following:
Article 5: This Article is about Indian Citizenship at the commencement of the Constitution
Article 6: Rights of citizenship of certain persons who have migrated to India from Pakistan are
mentioned in this Article
Article 7: This Article deals with Rights of citizenship of certain migrants to Pakistan
Article 8: Rights of citizenship of certain persons of Indian origin residing outside India are dealt
with in this Article
Article 9: This Article specifies that Persons voluntarily acquiring citizenship of a foreign state
are not to be citizens of the country
Artilce 10: The Continuance of the rights of citizenship is mentioned in this Article
Article 11: This Article authorizes Parliament to regulate the right of citizenship by law
Fundamental Rights of the Indian Citizen
Article 12 to 35 of the Indian Constitution covers the Fundamental Rights of the citizen of the
country. All these Fundamental Rights indicate that all the citizens are equally treated by the
nation irrespective of caste, sex and creed. The basic Fundamental Rights enumerated in Part III
of the Indian Constitution are categorized under 7 sections apart from the general segment. The
sections are as follows:
General Rights:
Article 12: The Definition of Fundamental Rights is given in this Article

19. Article 13:The Article comprises Laws of inconsistent with or in derogation of the Fundamental
Rights
Right to Equality:
Article 14: The provisions regarding Equality before Law are included in this Article
Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
is specified in this Article
Article 16: This Article consists of Rights of Equality of opportunity in matters of public
employment
Article 17: Abolition of untouchability is mentioned in this particular Article
Article 18: This Article provides details about Abolition of titles
Right to Freedom:
Article 19: Protection of certain rights regarding freedom of speech, etc. are clearly specified in
the Article
Article 20: This Article states the Protection in respect of conviction for offenses
Article 21: Protection of life and personal liberty is mentioned in the Article
Article 22: This Article deals with Protection against arrest and detention in certain cases
Right against exploitation:
Article 23: The details of Prohibition of traffic in human beings and forced labor are presented in
this Article
Article 24: The Article contains Prohibition of employment of children in factories, etc.
Right to Freedom of Religion:
Article 25: Particulars of Freedom of conscience and free profession, practice and propagation of
religion are clearly enumerated in this Article
Article 26: The Article specifies the Freedom to manage religious affairs
Article 27: Freedom as to payment of taxes for promotion of any particular religion is stated in
the Article
Article 28: This Article includes Freedom as to attendance at religious instruction or religious
worship in certain education institutions
Cultural and Educational rights:
Article 29: Protection of interests of minorities is specified in detailed form in this Article
Article 30: Right of minorities to establish and administer educational institutions is scripted in

20. this very
Article
Article 31: The Article dealing with Compulsory acquisition of property has been repealed
through the Constitution Act, 1978 under 44th Amendment
Saving of Certain Laws:
Article 31A: This Article contains Savings of laws providing for acquisition of estates, etc.
Article 31B: Validation of certain Acts and Regulations are mentioned in the Article
Article 31C: This Article deals with Saving of laws giving effect to certain directive principles
Article 31D: The Article dealing with Saving of laws in respect of anti-national activities has
been repealed by Constitution Act, 1977 and was recorded in the 43rd Amendment
Right to Constitutional Remedies:
Article 32: Remedies for enforcement of rights conferred by this part have been included in the
Article
Article 32A: Repealed
Article 33: This particular Article addresses the Power of Parliament to modify the rights
conferred by this Part in their application to forces, etc.
Article 34: Restriction on rights conferred by this Part while martial law is in force in any area is
mentioned in the Article
Article 35: This Article indicates the Legislation to give effect to the provisions of this Part
Fundamental Duties
The Fundamental Duties scripted in the Constitution of India are different from the Fundamental
rights. This is because Fundamental Rights are considered as the basic rights to be enjoyed by
the citizens of the nation while the Duties are conferred upon people to be followed by them
accordingly. The Fundamental Duties of the citizens of India mentioned in Article 51A of the
Indian Constitution are as follows:
PART IVA
FUNDAMENTAL DUTIES
51A. Fundamental duties.—It shall be the duty of every citizen of India—
(a) to abide by the Constitution and respect its ideals and institutions, the National
Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for
freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and the spirit of common brotherhood amongst all the people
of India transcending religious, linguistic and regional or sectional diversities; to
renounce practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers and
wild life, and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence;

21. (j) to strive towards excellence in all spheres of individual and collective activity so
that the nation constantly rises to higher levels of endeavour and achievement.]
[(k) who is a parent of guardian to provide opportunities for education to his child or,
as the case may be, ward between the age of six and fourteen years.]
Fundamental Duties are the modernization of the constitution. Fundamental duties have been
incorporated in the Indian Constitution to remind every citizen that they should not only be
conscious of their rights, but also of their duties. We have borrowed these duties from the
constitution of Japan. Constitutions of Japan, Yugoslavia, and Republic of China contain them.
The Constitution of Soviet Union (USSR) also contains fundamental duties. Under Indian
constitution, the Constitution (42nd) Amendment Act, 1976 inserted a new part IV A consisting
of Article 51A has been added to the constitution. Since, the Fundamental Duties are included
in Part IV of the Constitution, these can not come into force automatically, neither can
these duties be enforced by judicial process. The Constitution, like Directive Principles of
State Policy, leaves to the goodwill of citizens to abide by these provisions. According to
the famous constitutional expert D. D. Basu. the Constitution does not make any provision
to enforce these duties automatically or any sanction to prevent the violation of these
duties by the citizens. However, it is expected that if a law is enacted by the legislature
to enforce these provisions, it shall not be declared unconstitutional on the ground of its
inconsistency with the provisions of Article 14 or that of 19. According to him, these
provisions would act as a warning to all those who indulge in not paying due regards to the
Constitution or destroying public property. The Supreme Court may issue such warning to
citizens to take these provisions seriously. The Legislature may also enact laws to enforce
these duties. In fact, there a already many laws which directly indirectly enforce these
duties. For example. there is law for the protection of public property as well environment
and animal species. However, the Supreme Court. in Surya Vs. Union of India (1992 case.
ruled that the fundamental duties are not enforceable through judicial remedies by
courts. In Vijoy Immanuel Vs. State of Kerala (1987). the Supreme Court overruled the
decision of the Kerala High Court and decided that though the Constitution provides it to
be the duty of citizens to respect the National Anthem, it does not provide that the
singing of the National Anthem is part of such respect. Even a person while standing during
the singing of National Anthem (without himself singing it) can show respect to the
National Anthem.
Historical Context
The first case in which the debate between FR & DP emerge in court was
1. Champakam Dorairajan Case of 1951.
The petitioner challenged the reservation order of government of Madras on the ground of Article
15(1).

22. Article 15(1) : State shall not discrimination against any citizen on the grounds of Rel. Race, Caste,
Sex, Place of Birth or any others.
As per the 86th Amendment Act, 2002 11th Fundamental Duty is added as follows: "It shall be the duty of every
citizen of India who is a Parent or Guardian to provide opportunities for Education to his child or as case may be,
ward, between age of 6 to 14 years"