Positivism has its limits and its criticisms. New Testament readers may recall that King Herod, fearing the birth of a Messiah, issued a decree that all male children under a certain age were to be killed. Because it was the order of a sovereign, the decree was executed (or, in legalese, the decree was “executed”). Suppose a group seizes power in a certain place and orders that women cannot go to school and can only receive medical treatment from women, even though their condition is life-threatening and women doctors are rare. Let us also suppose that this commandment is carried out simply because it is the law and is carried out with all its might. The people who live there will undoubtedly question the wisdom, justice or goodness of such a law, but it is nevertheless a law and is generally enforced. To avoid the effects of the law, a citizen would have to flee the country completely. During the Taliban regime in Afghanistan, where this example comes from, many fled. The level or hierarchy of courts largely defines the extent to which a decision of one court has binding effect on another court. The federal court system, for example, is based on a three-tier structure in which the United States District Courts are the courts at the process level; The United States Court of Appeals is the trial court. and the U.S. Supreme Court is the final arbiter of the law.
In a nation, law can be used to (1) maintain peace, (2) maintain the status quo, (3) preserve individual rights, (4) protect minorities from majorities, (5) promote social justice, and (6) ensure orderly social change. Some jurisdictions serve these purposes better than others. While a nation ruled by an authoritarian government can keep the peace and maintain the status quo, it can also oppress minorities or political opponents (e.g., Burma, Zimbabwe, or Iraq under Saddam Hussein). Under colonialism, European nations often forced peace in countries whose borders were created somewhat arbitrarily by the same European nations. For several centuries before the twentieth century, empires were built by Spain, Portugal, Great Britain, Holland, France, Germany, Belgium and Italy. In terms of the functions of law, the empire may have kept the peace—largely by force—but it changed the status quo and rarely promoted Indigenous rights or social justice within the colonized nation. Civil law system, except in the rural areas of the north, where customary law known as the “Leke Code” still exists In the second half of the 20th century, German legal theory gained increasing influence in Argentina. A system of pure customary law is created by the judiciary, since the law derives from case law and not from the law. Therefore, a common law system places a strong emphasis on judicial precedent. However, a purely civil law system is governed by statutes and not by case law.
civil law system based on Western European legal systems; Note – In mid-2015, Argentina adopted a new civil code replacing the old one, in force since 1871. The U.S. system is a common law system that relies heavily on precedent for formal judgments. In our common law system, court decisions in previous court proceedings are extremely important to the court`s decision on the pending case, even if it is a statute. There are various sources of law in the U.S. legal system. The Constitution of the United States is fundamental; American law and common law must not conflict with its provisions. Congress creates the legal law (with the signature of the president), and the courts will interpret the constitutional law and the law. Where there is no constitutional or statutory law, the courts work in the common law domain. The same applies to the law in the fifty states, each of which also has a constitution or a fundamental law. civil law system, influenced by Soviet and Romano-Germanic legal systems; Ambiguous Constitution on Judicial Review of Legislative Acts Scotland, Louisiana, Mauritius and Quebec are examples of private law based on older civil and customary rules (not codified in Scotland) that persist in a common law environment.
Israel has its own system, in which the former Ottoman and British mandates are now supplanted by a modern system. It does not have a single constitutional document, but much of modern law combines the great legislative simplicity of the main civil codes with the careful transparency of the common law judgment. Common law system, based on the English model, with special legislation and regional courts for Maori Other legal and political systems are very different from the American system, which stems from the traditions of English common law and the creators of the American Constitution. Our legal and political traditions differ both in the type of laws we pass and respect and in the way disputes are resolved in court. civil law system; Note – In early 2020, the President signed an amendment to the Criminal Code, the Code of Criminal Procedure and the Code of Administrative Responsibility. The American legal system is based on a system of federalism or decentralization. While the national or “federal” government itself has significant powers, individual states retain powers that are not explicitly listed as exclusively federal. Most states have judicial systems similar to those of the federal court system. civil law system; Note – the 2005 Civil Code reflects a civil law based on the European model In all cases (general rule and exception), the common law tradition requires the court to explain the reasons for its decision.
In the case of the general rule, “freedom of choice” could be the main reason. In the case of the perjury exception, the efficiency of the judicial system and the requirements of citizenship could be invoked as grounds. Since the court`s “reasons” will be persuasive to some and not to others, there is inevitably some subjectivity in legal advice. That is, reasonable people will disagree on how convincing the reasoning that a court can offer for its decision is. mixed legal system of civil law based on the French Civil Code, the Ottoman legal tradition and religious laws covering civil status, marriage, divorce and other family relations of the Jewish, Islamic and Christian communities mixed legal system based on Napoleonic civil and criminal law, Islamic religious law and remnants of colonial laws; judicial review of the constitutionality of laws by the civil law system of the Supreme Constitutional Court (influenced by the United Nations Transitional Authority in Cambodia), customary law, communist legal theory and the common law civil law system with influence of American constitutional law; Judicial review of legal acts Religious law refers to the notion of a religious system or document used as a source of law, although the methodology used varies. For example, the use of Judaism and halacha for public law has a static and immutable quality that excludes amendment by legislative acts of government or development by judicial precedent; Christian canon law is closer to civil law in its use of codes; And Islamic Sharia (and fiqh jurisprudence) is based on precedent and reasoning by analogy (qiyas) and is therefore considered similar to common law. [21] 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.