Whatever their origin, most legal systems agree on certain fundamental premises. First, no one can be guilty of a crime if the offence has not been previously defined as such and if the sentence has not been pronounced through a legal procedure. This implies the need to clarify criminal law, prohibit its retroactive effect and certain notions of “fair trial” and the availability of a lawyer. Second, no one can be prosecuted twice for the same thing. Third, it is a crime to attempt a crime or conspire with others to commit one. Fourth, an alleged criminal must have a certain mindset to be convicted of the crime. Law has different meanings and functions. Philosophers have been concerned with questions of justice and law for centuries, and various approaches or schools of legal thought have emerged. In this chapter, we will examine these different meanings and approaches, and examine how social and political dynamics interact with the ideas that animate different schools of legal thought. We will also examine typical sources of “positive law” in the United States and how some of these sources take precedence over others, and we will expose some fundamental differences between the American legal system and other legal systems.
Written legal opinions are therefore a good playground for developing critical thinking by identifying the problem in a case and examining the reasons for the court`s decision or previous decision. What did the court actually decide and why? Keep in mind that a court, especially the U.S. Supreme Court, not only decides a particular case, but also sets guidelines (in its decisions) for federal and state courts facing similar problems. Note that court cases often raise a variety of questions or questions that need to be resolved, and judges (and lawyers) differ as to the nature of the real problem in a case. A holding company is the court`s complete answer to a crucial question for the decision of the case, thus giving clues about the importance of the case as a precedent for future cases. Most modern legal systems can be described as either common law, civil law, or a mixture of both. The first group includes countries whose “mixed” system is influenced by both civil and common law. The old uncodified civil law of Holland is the basis of the Roman-Dutch law of South Africa, Zambia, Namibia, Lesotho, Swaziland, Botswana and Sri Lanka; it is characterized by a rich legal literature dating back to Hugo Grotius (de Groot) in the 17th century. But their long contacts with Britain mean that their public law and legal proceedings owe much to the common law. For a partial list of common law and civil law countries, see Legal systems of the world on Wikipedia Get advice from law students and lawyers in the LexTalk law community on law schools In federal constitutions, the enumerated powers are often assigned to the central government structure, while other powers are left to the constituent parts. In practice, the main powers of defence, taxation and trade go to the centre, while education and health care can go to the components. The constituent parts are protected, at least theoretically, by representation within the central governmental structure (i.e.
the United States Congress) and by their own governmental powers in their territories. Suppose a court has to decide whether an employer can fire an employee without cause. Suppose there were no laws that applied to the facts: there was no contract between the employer and the employee, but the employee had worked for the employer for many years, and now a younger person was replacing him. The court should decide, without prior guidelines, whether the employee has raised a “cause of action” against the employer. If the court decides that the case is not legally enforceable, it will dismiss the claim. Future courts would then treat similar cases in the same way. In this lawsuit, the court could find that employers can fire employees for any reason or no reason. This rule could be applied in the future if similar cases occurred.
Summary of the differences between the civil and common law legal systems Each of the different schools of law has a particular conception of what a legal system is or what it should be. Natural law theorists emphasize the rights and duties of government and the governed. Positive law presupposes that law is only the command of a sovereign, the political power to which the governed will obey. Recent writings in the various schools of legal thought emphasize long-standing models of government by the rich over others (the CLS school) and by men over women (ecofeminist legal theory). Whether the United States will remain a supporter of free trade and continue to participate as a leader in the WTO will ultimately depend on whether citizens elect leaders who support the process. For example, if Ross Perot had been elected in 1992, NAFTA would have been politically (and legally) dead during his mandate. For more information about legal systems, see this article from Florida State Law Review, this article from the University of Berkeley Law Review, and this article from the Louisiana State University Law Review. In the parliamentary system, the head of state differs from the head of government – called prime minister, prime minister (or in Germany federal chancellor). The head of state may be a hereditary monarch or a directly elected president. However, the Prime Minister is not elected directly by the voters, but is appointed from the majority or coalition faction in the Legislative Assembly. The prime minister and other ministers do not have a fixed mandate, but can in principle be forced to resign by a parliamentary vote of no confidence in the government. This is usually compensated by the executive power to dissolve the legislature and call new elections (although there may be some protection against hasty or repeated dissolution).