Major Legal Systems Research Articles

Global Legal Systems, Legal Families and their Classification

The founders of the comparative system approach to the study of law (among the first wereAmerican R. Schlesinger, French R. David and M. Ancel, later Germans H. Kotz and K. Zweigert, ItalianR. Sacco, Canadian P. Glenn, etc.) at the turn of the 1960-1970s have made a breakthrough in legalscience. They have completed building the ground of a new direction of comparative legal research,identified and analyzed various legal commonalities of the past and present referring to them as familiesor systems (Anglo-Saxon, Romano-German, Socialist, Muslim, etc.). Many Russian authors still followthis terminology. The terms “legal system” and “legal family” are often used as similar, the concepts ofsystem and family are not given as a rule. The Anglo-Saxon legal family and totalitarian socialist legalsystem belong to the same classification unit. The article suggests a new approach and a synthesis oflegal systems. The author uses the methods of historical, logical, deductive, inductive and comparativestudy, formational-civilizational approach and, on this basis, identifies three major legal systems inthe contemporary world: Muslim (1.7 billion people), liberal semi-social capitalist system (applies tomore than 4.5 billion people, including many developing countries) and the totalitarian socialist system(1.5 billion people). When selecting legal families, the traditional approach of comparative law is used,but considering the social and cultural legal features. On this basis, within each of the global systemslegal families differ. In the system of Muslim law, there is fundamentalist Muslim law (radikalist) andmodern (advanced) legal family. There are classifications differ in Sunni and Shiite legal families,liberal semi-social capitalist system includes Anglo-Saxon family, Romano-German and other families(modern researchers call in particular Latin-American, Scandinavian families, etc.), in the totalitariansocialist system, there is orthodox and partially modernized families.

The Contractual Prohibition of Assignment A Comparative Overview of the Legal Protection of the Assignee

This paper examines the effect of a contractual prohibition on assignment and its embodiment in major European legal systems. A thorough comparative overview reveals two legal principles concerning the contractual prohibition on assignment in any national legislation that serve as a founding stone of any respective set of rules in this matter. The first one, referred to as “the autonomy of the will” principle acknowledges the possibility for parties to exclude the transferability of a receivable with an absolute effect, enforceable against any third party. The second one, known as the “free alienability of assets” principle aims to promote the unrestricted transfer of rights over objects, thus limiting the effect of a prohibition on assignment to contracting parties only. This existing diversity testifies for the need to provide a harmonized approach to the anti-assignment clause. The paper calls for an adoption of the provisions of several soft law instruments with regard to the contractual prohibition on assignment due to their balanced legal approach.

The Admission and Enrolment of Foreign Legal Practitioners in South Africa under the Legal Practice Act: International Trade Law and Constitutional Perspectives

Globalisation requires ever closer co-operation between legal professionals hailing from different national jurisdictions. This interactive global environment has fostered growing international training and mobility among legal practitioners and the internationalisation of legal education. Increasing numbers of law students get trained in other countries as part of their undergraduate degrees or even come to foreign shores to obtain law degrees. Many students hailing from other African countries study towardsLLBdegrees at South African universities. Major commercial law firms ensure that they can offer in-house expertise on major foreign legal systems and co-operate with partner firms in other parts of the globe.
 The General Agreement on Trade in Services (GATS), to which South Africa is a party, is a multilateral agreement focusing on the liberalisation of trade in services amongst member countries. Services under the GATS system include legal services. The commitments made by South Africa under this agreement require that South Africa allows foreign legal practitioners to establish a commercial presence or be transferred to South Africa. The Bill of Rights entrenched in Chapter 2 of the South African Constitution guarantees fundamental rights including the right to equality and freedom of trade, occupation and profession. With the coming into force of the new Legal Practice Act 28 of 2014, which provides a legislative framework for regulating the affairs of legal practitioners, including their admission and enrolment, it is necessary to assess the extent to which the Act complies with the GATS rules and the South African Constitution.
 This paper examines the new Legal Practice Act 28 of 2014, and examines whether the Act addresses the conflicts that have always existed between the regulation of the legal profession and the admission of legal practitioners in South Africa with South Africa's commitments under the GATS system. Using the doctrinal legal method, it analyses and evaluates the rules governing the admission of foreign attorneys in South Africa from two perspectives. First, it considers them in the light of the international law obligations of the country and second it evaluates whether or not they comply with the South African Constitution, and more specifically with the Bill of Rights entrenched in the South African Constitution. While the new legislation may assist in ensuring the compliance of South Africa with the relevant GATS rules, it will depend on the regulations which still have to be promulgated to what extent the new legal framework will achieve the full compliance of South Africa with all relevant GATS rules.
 The paper concludes with recommendations for the reform of the Legal Practice Act. It argues that while the requirement to be a South African permanent resident in order to qualify for admission as an attorney may be justifiable in terms of GATS and in terms of South African constitutional law, it is not in South Africa's best interest to retain it. Consequently, the paper calls for the repeal of the permanent residence requirement for admission as an attorney in the county.

Legal Education Under Fire

Abstract: Legal education has come under fire from all quarters, almost everywhere in the world. The crisis of legal education is not only an internal problem for universities and university scholarship, but also deeply affects public policies and the shaping of legal order. The main features of legal education that have shaped the major legal systems of the European area, but that are now experiencing a process of obsolescence are: the influence of Roman law, both directly and through the Pandectists; legal positivism, formalism and value-free scholarship, dogmatics and constructionism; the separation of the study and teaching of law from the study and teaching of history and of social sciences; the idea that law is a product of the State exclusively. To overcome these deficiencies, one should tear down the barriers between the fields, introduce new paradigms, a new grammar founded on the entire body of the law – not only on the field of civil law; open up the study and teaching of law to social sciences and history; place the study of transnational institutions and legal cultures alongside the study of local legal cultures, because legal science transcends national boundaries; reestablish links with public and private policies.

On Foreign Investment and Merger Controls: A Law and Geoeconomics View

The essay provides a brief overview of the transition that occurred in major legal systems from golden share to golden power provisions in order to protect national strategic interests in the economic field, with a focus on Italy. A closer look is then dedicated to a recent proposal for an EU regulation on foreign investment control. Final thoughts are developed in light of recent lines of social science research, pointing at the existence of geoeconomic contests in a context of economic wars.

Instigation in the Law of State Responsibility

It is orthodox doctrine that international law includes no general prohibition on instigation in the law of state responsibility – the rule in Article 16 ARSIWA is taken only to capture material assistance (or facilitation) as opposed to the ways that a state might induce or incite or instigate another state to commit a wrongful act. This orthodox conclusion is based on three claims – two conceptual and one founded on the absence of state practice. I argue that the two conceptual claims are flawed. In contrast, it is probably correct that there is insufficient state practice to ground a prohibition on instigation. However, in this article I argue that such a prohibition may instead be grounded on a general principle of law as envisaged in Article 38(1)(c) of the Statute of the ICJ. That general principle may be formulated in the following way: it is wrong to instigate another to do what you cannot do yourself. To this end, the inquiry seeks to show that, as the ICTY put it in Tadic, ‘the major legal systems of the world take the same approach to this notion.’ Crucially, its comparative analysis is not based on criminal law, even though instigation is widely accepted there – the jump from a general principle of criminal liability to a rule of state responsibility might be thought too wide. Instead, I seek to show is that this general principle is instantiated in civil law in the major legal systems of the world.Of course, it is not enough to show that a general principle exists in those major legal systems – the consequent question is whether it is appropriate for the international legal system and its community of sovereign states. I argue that it is, and simultaneously address the proposed content of that principle when instantiated in international law. Indeed, it will be argued that now that international law has taken the radical leap represented by the rule in Article 16 ARSIWA, it makes no sense to exclude instigation from the ambit of the rule. In addition to its grounding in positive law through Article 38(1)(c), a prohibition on instigation is compelled by the essential logic of Article 16 ARSIWA and the moral claim of complicity: you cannot do by another what you cannot do yourself.

The Hungarian court system with special emphasis on the principle of the independence of judges

The question of ensuring the independence and impartiality of judges is one of the basic principles of justice, and basic principles of state functioning in general. Successful functioning of justice and the realization of this principle is largely linked to the method of selection of judges, which is, nowdays, an important issue in the world's major legal systems. They all aim to find a solution for the selection of judges that could implement reinforcement of the principle of independence of judges and their impartial trial. Regarding this, significant differences are noticeable between countries which apply civil law and ones that judge by the principle of common law, especially bearing in mind that certain political cultures exist in which there are no limits that the court involve even an external factor to the trial verdict. In this thesis we present the Hungarian justice system and methods of selection of the judges, comparing it with the Serbian model, and then presenting solutions in English, American, German and French judiciary, trying to display current prevailing international trends in countries that apply the legal system of Common law, or in those who judge by Civil law. Finally, by the method of comparative analysis, we present our own view on this issue, being aware that the problem of selection of the judges should be cautiously regulated, given the experience of some other countries, which is especially reflected in post-communist countries in which, up to the 1990s, only one-party system existed, characterized by the fact the judges were selected by the communist Party personnel, that in former Yugoslavia used to be called 'socio-politically suitable'. Nowdays in Hungary, Serbia and many other countries, judicial councils represented by judges, prosecutors, lawyers and law professors have a central role in the selection of the judges (in Serbia there are special judge and prosecutor councils). In France, the election of judges is conducted by the competition exam.

The relevance of the UNIDROIT Principles in investment arbitration

This article aims at ascertaining the role and relevance of the UNIDROIT Principles of International Commercial Contracts (PICC) in investment arbitration. The PICC are ‘a non-legislative codification or “restatement” of the law of international commercial contracts in general’ produced by a group of independent academics and experts representing all of the major legal systems of the world. The PICC are assumed to be particularly apt to be used as applicable law in international commercial disputes that are to be solved by arbitration, as opposed to national courts of law. A sub-set of these international arbitrations arise in the context of investment disputes; and while many of the rules governing the applicable law to this sub-set are similar to commercial arbitration, there are also key distinctions. This article will look specifically at the sources that regulate which law is applicable in investment arbitration in general. An analysis of these sources will show that, to varying degrees, investment arbitration is open to the application of sources such as ‘rules of law’ and international law, independently or in combination with national law (which under certain circumstances can include the PICC). Using a comprehensives set of investment arbitration cases referencing the PICC, this article will assess to what extent the PICC have been or may be used as ‘rules of law’ that govern the dispute, as a source of international law, as corroboration of international law, as corroboration of national law or as a correction of national law.

KONSEP HUKUM MODERN: SUATU PERSPEKTIF KEINDONESIAAN, INTEGRASI SISTEM HUKUM AGAMA DAN SISTEM HUKUM NASIONAL

Indonesia is known as a country with a mixed legal system. The current legal system is dominated by three major legal systems, namely Western legal system, customary legal system and Islamic legal system. The mixing of legal systems has been an emerging problem, because basically each legal system has a different character. The most basic problem is unbalancing in the formation of legal system in consequence of the dominance of Western legal system from customary and religious legal system. This paper try to analyze the concept of integration of religious legal system in the national legal system to make its position can be balanced. Based on the analysis, the concept of Three Pillars of Modern Legal Systems is suitable for the modern Indonesian legal system in order to integrate the diversity of cultures, customs and religions.

Pluralism, global law and human rights: Strengthening corporate accountability for human rights violations

Though a Rothschild you may be, in your own capacity,As a Company you’ve come to utter sorrow,But the liquidators say, ‘Never mind – you needn’t pay’,So you start another Company Tomorrow!Corporations as legal entities were created by states mainly to assist individuals to combine capital and to be protected from personal liability. The legal institution of a corporation, whose existence and operation is entirely enabled by law, is found in every major legal system. Yet their specific form and legal responsibilities are defined by each state under that state’s national law, leading to considerable diversity worldwide. An area of increased legal activity in relation to corporations has been with regard to their responsibility for human rights abuses. In particular, there have been a number of attempts to move towards binding international legal obligations on corporations for their activities that impact on human rights.

An Analytical Review of Islamic and International Laws on Civilian Right to Life and Human Dignity

Right to life and Human dignity are among the cardinals of fundamental human rights provided for by the major legal systems in the world. Thus, unnecessarily taking of human soul and inhumane and degrading treatment is totally condemned by the world major legal systems. Feasible measures should always be taken by the parties to a conflict in order to avoid loss of civilian lives and injury to their persons. Any indiscriminate attack against civilians would certainly amount to a violation of their fundamental human rights. However, civilians forfeit their fundamental human rights (particularly rights to life and human dignity) if for instance they violate the rules governing the conduct of hostilities or by simply participating in the hostilities. Participation of civilian in hostilities is indeed one of the factors that can always blur the dividing line between an actual civilian and a combatant. But the extent of the participation according to Islamic and International laws is always controversial. It is therefore against this backdrop that the paper reviews and analyzes the Islamic and International laws relating to civilian rights to life and human dignity.

A Comparative Study of the Principles Governing Criminal Responsibility in the Major Legal Systems of the World (England, United States, Germany, France, Denmark, Russia, China, and Islamic legal tradition)

The purpose of this survey is to examine the underlying principles of criminal responsibility in selected common law and continental law jurisdictions as well as in the Islamic legal tradition through the lens of comparative law (legal jurisdictions of England, Canada, United States, Germany, France, Denmark, Russia and China are subject to the legal analysis). By conducting a comprehensive legal analysis of the concept of crime in selected legal jurisdictions, this study reveals the common legal features pertinent to the concept of crime that are shared by the major legal systems of the world. Particular attention has been given to the thorny and much debated area of the subjective element of a crime and the standards employed to demarcate between intentional and negligent conduct. Turning to comparative law as an invaluable tool of legal analysis, the study demonstrates that there are more common characteristics than originally anticipated regarding the concept of crime, as well as the basis of the principle of culpability in such major legal systems.

The Renegotiating Clause in Petroleum International Joint Venture Agreements

Foreign investors and host states rely for the protection of their interests on contractual clauses aiming at maintaining the integrity of their contracts and precluding any modification of the ventures except by mutual consent. Petroleum International Joint Venture Agreements (JVAs) involve the commitment of significant capital for a very long duration. For example, the classic forms of Stabilisation Clauses were introduced by foreign partners as a mechanism to prevent the host state from taking action by virtue of its sovereign power that might affect oil and gas agreements. Unlike some forms of classic Stabilisation Clauses, which try to prevent unilateral modification, Renegotiation Clauses are known to recognise the mutability of the contract and allow for changes in the contract. Renegotiation Clauses aim to protect the parties to oil and gas joint ventures by making the contract flexible and dynamic throughout its duration, in order to adapt it to changing circumstances and, more particularly, to re-establish the contractual equilibrium of the transaction. This article is devoted to a discussion of renegotiation. Section B begins by defining what is meant by the term renegotiation, and argues that we only need to distinguish between two different renegotiation situations, namely, anticipated renegotiation and involuntary renegotiation. Section C focuses on and discusses some reasons for renegotiation. I explore three such reasons, and in so doing, I look at some arbitration cases that have taken place in the petroleum industry. Apart from illustrating the point that renegotiation is a fact of life in any long-term commercial relationship, the case analysis should also help us understand the factors and forces that trigger renegotiation. To avoid confusion in this section, I shall not discuss cases that do not directly concern renegotiation. Two such cases described in the literature are Phillips Petroleum Co (UK) Ltd et al v Enron Europe Ltd. and Mobil Oil Iran, Inc. v. Government of the Islamic Republic of Iran. This is because I believe that the importance of the Enron case lies not in the reasons for renegotiation but the difficulties that can arise in the enforcement of a clause – ie is it an agreement to agree or not. The Mobil case, on the other hand, is about negotiation in relation to the termination of a contract and not about renegotiation. The article then, in section D, discusses the change in circumstances concept. On one hand, according to the concept of sanctity of contract (pucta sunt servanda) a contract is an expression of the parties’ free will and choice; as an exercise of the parties’ freedom and autonomy, as such, it should be honoured and not be interfered with by the court. The terms of the contract must be implemented to the letter no matter how onerous or burdensome they may prove to be. The change of circumstances concept, on the other hand, has been recognised by many major legal systems of the world, ie England, United States, France, and the Vienna Convention on the Law of Treaties (1969). Hence, some writers, rightly, argue that, based on the change in circumstances concept, parties in oil and gas agreements can overcome the sanctity of the contract principle in order to adjust the contract. We shall therefore quickly highlight those major legal systems that have recognised the change in circumstances concept. The aim is to see whether or not those legal systems have recognised the change of circumstances similarly. The comparison is important in case parties to oil and gas agreements are put in situations where there are no contractual clauses that provide for renegotiation. If parties face a case where no contractual term provides for renegotiation but where an obligation to re-negotiate under the general law is argued, then much will depend on the applicable law. For example, if the law governing the agreement is English law, the result may be different from when the law governing the contract is the law of France.

The Death Penalty Question?

The third article of the Universal Declaration of Human Rights of 1948 provides that ‘every one has a right to life, liberty and security of person’. This and other allied articles of the Convention enjoy the esteemed position of jus cogens and therefore, its application in any country of the world cannot be compromised or limited. The import of this statement finds value in the fact that the life of one person is as valuable as the life of the other irrespective of class, age, race, gender or ideological affiliation. Thus, no legal entity, whether natural or artificial has the right to impinge on the liberty of or take the life of a person. However, like the notorious legal maxim states that ‘to every general rule there is always an exception’. Thus, in the event where one member of a society takes the life of another with full advertence to the consequences of his action, would it be out of place if the state as the guarantor of the security of the lives of its citizens, imposes a proportionate punishment to fit the crime? The characteristic effectiveness of the capital punishment has been brought under the scrutinizing eyes of morality, expediency and retribution. This article therefore, aspires to analyze this issue as applied or misapplied in some major legal systems of the world and proposes ways to get around this nagging dilemma.

Asset Partitioning, Debt-Equity Agency Conflicts, and Choice of Organizational Form

Jensen & Meckling's agency theory represented the predominant analytical tool in scrutinizing the institutions of corporate governance during the last decades. While most of the literature focused on the corporate form, far less attention has been paid to the agency conflicts predetermining the governance structure of partnerships. The typical unity of ownership and control draws attention to the cardinal conflict between partners and creditors (broadly understood as all agents engaging in deferred exchanges with the partnership). The law of partnership across jurisdictions facilitates the separation of asset pools and consequently allows for partner opportunism vis-a-vis the firm's creditors. Joint and several liability which marks a common feature of the law of partnership in major legal systems constitutes a transaction cost reducing mechanism to contain partner opportunism. It internalizes the costs of asset diversion, claim dilution and risk enhancement. Its main function is to incentives equity holders accurately (not to insure creditors fully). Yet, under certain preconditions, the coarse tool of unattenuated personal liability renders the partnership form unattractive. This paper delineates the relative benefits and costs that figure in determining the efficiency of using either partnership or corporate law as standard contracts in firm organization. Historical and current data indicates that the divide does not necessarily equal the small firm/large firm distinction but flows from the firms' ownership structure and financing needs. It is also endogenously determined by the costs of incorporation that vary across jurisdictions.

Remedies and Alternative Contracts

Contracts that contemplate alternative possible modes of performance, frequently referred to as alternative contracts, are common wherever written contracts are routinely used and relied upon. Nevertheless, courts in major legal systems have encountered enormous difficulty articulating a consistent and appropriate remedial principle to govern damages when such contracts are breached by the contracting party having the election to perform in alternative ways. This article analyzes this issue, and attempts to identify the most appropriate remedial principle for breaches of alternative contracts. To this end, Part I adopts a positive standpoint canvassing the rules governing remedies in a number of leading common law and civilian jurisdictions and illustrating in the process that remedies for breaches of alternative contracts are not consistently approached across jurisdictions. Indeed, even within several jurisdictions there are inconsistencies. Part II takes a normative approach to the question and illustrates that the most desirable remedial principle is a solution that has not yet been adopted for breaches of alternative contracts. Strikingly, we demonstrate that the ordinary common law remedy for breach of contract can be regarded as a special case of the most appropriate remedial approach for contracts with one or more modes of performance. Part III offers some thoughts regarding the possible reconciliation of Parts I and II, suggesting that existing rules may be normatively justified as the second-best in some circumstances. Part IV concludes with the suggestion that courts adopt the principle that the mode of performance that would be selected by the party with the election if specific performance were ordered be used for the purposes of assessing damages.

Rape as genocide: some questions arising

One of the most significant developments in the jurisprudence of modern international criminal law is the determination of the International Criminal Tribunal for Rwanda (ICTR), in the Akayesu case...

The International Court of Justice and the World's Three Legal Systems

This paper seeks to understand why some countries accept the jurisdiction of the International Court of Justice (ICJ) more readily than others. The theory focuses on institutional differences between the world's major legal systems: civil law, common law, and Islamic law. Important characteristics of these legal systems (stare decisis, bona fides, pacta sunt servanda) are integrated in an expressive theory of adjudication, which focuses on how adjudication enhances interstate cooperation by correlating strategies, constructing focal points, and signaling information. The theory considers the ability of states to communicate with each other, using acceptance of ICJ jurisdiction as a form of cheap talk. Empirical analyses show (1) civil law states are more likely to accept the jurisdiction of the ICJ than common law or Islamic law states, (2) common law states place the greatest number of restrictions on their ICJ commitments, and (3) Islamic law states have the most durable commitments.

Mens rea – Mistake of Law & Mistake of Fact in German Criminal Law: A Survey for International Criminal Tribunals

More than a decade has passed since the establishment of the two ad hoc Tribunals, however, the jurisprudence of both Tribunals evidence the inconsistency regarding the requisite mens rea standards for serious violations of international humanitarian law. Hence, a survey of the attitude taken towards the definition of the major facets of mens rea by the world major legal systems is of great significance with regard to the establishment of a unified concept for mens rea in international criminal law. Section I of this study examines some of the major judgments of the two ad hoc Tribunals where both Tribunals refers to national jurisdictions in order to clarify the mens rea required for the imposition of criminal responsibility for serious violations of international humanitarian law. Section II is a brief outline of the structure of the criminal offence in German criminal law. This is necessary since German criminal law does not follow the “offence analysis” scheme known in common law countries, but is based upon a three stage structure of the criminal offence. In Section III, the concept of intention (Vorsatz) in German criminal law is thoroughly discussed and analysed. This includes the discussion of dolus directus (first and second degree) as well as of dolus eventualis. Emphasis is put on the differentiation between dolus eventualis and negligence, since it reflects a highly debated issue in German criminal law. The concept of negligence will be outlined in Section IV. Given the fact that the German criminal law recognizes that mistake of law and mistake of fact (Tatbestandsirrtum, Verbotsirrtum) is not a separate doctrine, but part and parcel of the basic analysis of mens rea, these two basic types of mistake will be addressed in Section V. This includes the discussion of error in persona vel obiecto and aberratio ictus. Finally, the conclusion will be supported by some remarks and recommendations regarding the German law of intent and its influence on the development of international criminal law.

Unjust Enrichment and Change of Position

Unjust enrichment is a highly debated and complex legal device, which gives rise to multiple legal problems. One of the difficulties arising within the law of unjust enrichment is that of the security of receipt of the debtor. Contrary to contractual obligations, the debtor of the legal obligation to make restitution is not always aware of the existence of that obligation. Consequently, the debtor may have acted to this detriment in reliance on his belief that he was entitled to keep the enrichment. This contribution analyzes whether the good faith of the recipient is protected in a restitutive relationship in some of the major legal systems in European private law. This analysis will conclude that all legal systems indeed protect the defendant who has changed his position in good faith that he was entitled to the enrichment, but that the manner in which the protection is provided differs between these legal systems. The second part of this contribution shall elaborate on the prevailing approach in European private law, which starts from the defence of change of position. It will show that all legal systems are struggling to find a just solution for the same problems.