WORLD LEGAL AND POLITICAL SYSTEMS

Forms of Government
At the dawn of history, when people began to live in tribes or clans, government was fairly
simple. It was entrusted to a chief, or a council of wise elders. As human society became bigger
and more complex, so did government. The ancient Greek thinkers divided government into
three forms: monarchy, or rule by one (usually a king); oligarchy, or rule by the few (the rich,
noble or powerful); and democracy, or rule by the many (the free citizens).
All forms of government have one thing in common: they have authority - the power to make
laws and compel people to obey them. But in a democracy this authority is based on the consent
of the people, who can change the government by a majority vote in free elections. Democracy is
possible only where the minority of citizens is willing to accept the rule of the majority, and the
majority is prepared to respect the rights of the community. These conditions do not exist in
many countries today.

A. WORLD POLITICAL SYSTEMS

A form or system of government refers to the set of political institutions by which a state is
organized in order to exert its powers over a community.
An Oligarchy is a form of government where political power effectively rests with a small, elite
segment of society. The word oligarchy is from the Greek words for "few"
A dictatorship is political rule where absolute power rests with one person who has achieved this
position without hereditary right or through the free consent of the people (e.g. Cuba).
Communist state a form of government in which the state operates under a one-party system and
follows the beliefs of Marxist-Leninism, or Maoism. Generally, the institutions of the state (
Courts) and the Communist Party become entwined (e.g. China).
Democracy The word democracy derives from the ancient Greek demos "people," "the mob”,
“the many" and kratos "rule"- ‘of the people, for the people, by the people.’
Representative democracy is a form of government founded on the principles of popular
sovereignty by the people's representatives. The elected representatives have the responsibility of
acting in the people's interest by making laws on their behalf.
Monarchy a state where political power rests with one person, King, Queen, Emperor or
Empress, who has obtained the position through hereditary (birth) rights.

A constitutional Monarchy is a state where the head of state is a King or Queen, but their powers
are limited by a constitution
Federal or Constitutional Republic a political state where political power rests with the people
and their elected representatives. A President is Head of State NOT a King or Queen. Citizens
have a choice of political parties at elections (e.g. Indonesia, USA).
Republic a political state where political power rests with the people and their elected
representatives. A President as Head of State, the country may or may not be a democracy (e.g.
USA, France, Cuba, China, and Vietnam).
Totalitarianism describes modern regimes in which the state regulates nearly every aspect of
public and private behavior (can also be called a dictatorship).
Some political states regarded as totalitarian are: Stalinist Communism, Maoist Communism,
Italian Fascism, German Nazism and theocracies including Islamism.
Islamism is a term used to denote that Islam is not only a religion but also a political system.
Islamism holds that Islamic law (sharia) must be the basis for all statutory law of society; that
Muslims must return to the original teachings and the early models of Islam.

Who Rules?
How much do you believe in democracy? The ancient Greek democracy
Greeks who invented democracy really did believe in it.
In their democracies the citizens themselves gathered in
huge open-air meetings to pass laws and decide policy on
everything, from taxation to the conduct of wars. They
did not simply vote for a government every three or four
years; they were the government. They held their
meetings every nine days and more often if required.

Of course in our large societies it would be impossible for the citizens to meet together in one
place. The Greeks managed this because their societies were tiny and most adults were not
citizens. Women were not citizens, nor were slaves who did most of the work, nor were
migrants. Democracy was a club for native-born, free men. Still it was a very large number of
male citizens who were eligible to come to meetings. At Athens, where democracy operated in
the fourth and fifth centuries BC, there were over 20,000 citizens. An important meeting could
only begin when 6,000 showed up.
What a crazy idea to make a crowd into a government! Surely the real decisions were made
elsewhere. No. Wouldn’t different people show up to each meeting? Yes. Wouldn’t meetings
change their minds? Yes. Wouldn’t citizens be swept away by emotion? Yes, sometimes. And
yet this system of government lasted for almost two hundred years. It did work. The citizens of
Athens were committed to making it work.
All of Greece became part of the Roman Empire. Direct versus representative democracy
Democracy was snuffed out and did not reappear for two
thousand years. The ancient Greeks would not call our
system a democracy. Democracy means literally rule by
the people. Our citizens don’t rule; they elect other
people – politicians – to rule. Greek democracy is called
direct democracy; ours is representative democracy.
Since the number of our citizens is so large, we have to
persist with electing representatives.
The ancient Greeks would not call our system a Direct versus representative democracy
democracy. Democracy means literally rule by the
people. Our citizens don’t rule; they elect other people –
politicians – to rule. Greek democracy is called direct
democracy; ours is representative democracy. Since the
number of our citizens is so large, we have to persist with
electing representatives.
 The philosopher Plato considered government such an expert craft that he Plato’s rulers
suggested a small group of people needed to be chosen for the job. Most people
are of limited capacity and are fit only to be workers and to be governed. The
few good people must be carefully educated to be rulers. They must not have
personal possessions and their children must be taken from them. Justice can
only come from detachment. It will never come from the hurly-burly of
democracy.
Plato’s pupil Aristotle was also an opponent of democracy, but his method of Aristotle’s mixed
determining what was good government to look at governments as they actually system
operated. He divided the Greek states into three categories: monarchy,
aristocracy, and democracy. Each had their virtues, but each tended to
degenerate: monarchy into tyranny, aristocracy into oligarchy, and democracy
into mob rule. He thought a mixed government, which combined the three
methods and guarded against their failings, would be best.

B. WORLD LEGAL SYSTEMS

What is a legal system?

Elements of a legal system:

1. Law-makers/ legal substance

2. Law Enforcers/ legal structure
3. Interpretation of Law/ legal culture

All countries have a legal system of some sort.

The ‘ legal system’ is a broad term that describes the laws we have, the process for making those
laws, and the process for making sure the laws are followed.

Our legal system reflects how we behave and how we as a country expect people, organizations
and governments to behave to each other.

The world context

FOUR FAMILIES OF LAW
Common Law: Originating in England and still retained, by most of the countries which England
colonized, including North America, Australia, India, Malaysia;
Civil Law: Originated in Europe and based on Roman Law, represented by Codes from France
and Germany sometimes acquired through colonization e.g. Vietnam and sometimes adopted by
choice e.g. Japan;
Customary Law: indigenous personals or religious laws retained in countries which adopted
either the common law or civil system and coexisting with those systems;
Communist/ socialist: Civil Law in intstitution and system, Socialist economic values and goals.
1. Civil law
The Civil Law system is the term used to describe the legal regime which operates throughout
Europe. It also operates in countries that were originally colonized by European powers other
than England. As a result it applies throughout the northern part of Africa (colonized mainly by
France) Central Africa (colonized by France and Belgium), Central and South America
(colonized by Spain and Portugal). It also operates in Indonesia (colonized by the Netherlands).
It has also been adopted by a number of countries that were not colonized when they embarked
on the path of modernization in the nineteenth century. One of these was Turkey. Japan also
adopted the Civil Law system when it sought to adopt a western system of law in the 19th
century. Thailand and China also adopted the civil law system, with the return to a capitalist style
system, many areas of private law are now codified, e.g. General Principles of Civil Law.
The Civil law system stems from Roman Law.

Brief history
The first code of Roman Law was known as the Twelve Tables and was adopted about 450BC.
The Romans developed a comprehensive and systematic legal system whilst also encouraging
the writings of philosophers. The Emperor Justinian commissioned the Great Code as well as
preparing a basic legal text book for students (the Institutes). The traditions of Roman law were
preserved by the Catholic Church and formed the basis of the Church’s legal system (Canon
Law).
The first modern code of major significance is the French Civil Code 1804 (Code civil des
Francais) also known as the Code Napoleon. The French Civil code is one which lays down
general principles which allows judges room for interpretation. It is relatively easy to read, for
example;
‘Every act whatever of man which causes damage to another obliges him by whose fault the
damage occurred to repair it’

Civil law systems are based on Roman law, which was derived from the edicts* of officials, the
decrees of the Senate and the edicts of the Emperor. In addition a large number of written opinions
by Roman jurists was built up and gathered in collections, the most famous of which is the Institute
of Justinian.
Roman law was revived in the Middle Ages, and its influence began to spread over the whole of
Europe and into Latin America. This spread was accelerated by the conquests of Napoleon and the
application of the Roman law-based Napoleonic Code in conquered territories.
The main characteristics of civil law systems are:
• A moralistic approach to legal principles. The development of civil law was heavily influenced by
the views of scholars.
• Extensive codification. The code attempted to state the law in detail, so that as far as possible the
judge simply had to apply the code without resort to precedent.
• No binding precedence of court decisions. Decisions of higher courts have no binding effect on
courts lower in the system.
• The judge in the civil law system takes a more interventionist role, asking questions of witnesses.
• Reliance on submissions. Civil law systems are based more on written submission than on
argument by lawyers before the judges.
* An edict is a directive or ruling made by a higher authority that must be obeyed.
* Codification requires laws to be set down in codes or Acts of Parliament and applied in a
uniform manner.

2. Common-Law
Common-law systems have traditionally relied on case law, which allows the development of
general legal rules from individual judgments. However, a growing body of statue law has
developed since the nineteenth century, both in England and Australia. Modern decisions now rely
on legislation much more heavily than in the past.
The main principle of common law is the doctrine of precedent, in which judges arrive at their
decisions by the referring to decisions of higher courts. However, a judge may decide that the facts
of another, similar case are significantly different from those in the case they are deciding on, and
may not follow the precedent. This is called ‘distinguishing the precedent’.
Other Important features of common –law systems include the use of the adversarial trails, where
lawyers from both sides argue their case in front of a judge and jury. The Concepts of Equity are
also used in Common-law systems.

COMMON LAW OR JUDGE-MADE LAW & the doctrine of Precedent

The distinctive thing about what is known as ‘common law’ as a system, is the way this system uses
previous cases. In fact, when we discuss (that is, the record of the decision of a judge in a particular
matter) we also refer to them as ‘common law’. Only the common law actually makes its law by this
process. Thus the common law is a system of judge made law, which is developed by judges one
after the other making decisions in cases, all the time saying that they are following previous cases.
There are several possible reasons to justify adherence to precedent as a principle of law, including:
(1) the principle that like should be treated alike
(2) the need for certainty
(3) the need for predictability

Formal Rules of Precedent

Where a court is bound to follow the decisions of another court, two issues arise:
(i) What is the ratio decidendi (reason for the decision) of the case which binds the lower court?
That is, what rule applies?

(ii) How does a judge decide whether the rules should be applied to the present facts?
Patrick Parkinson Tradition and Change in Australian Law, Law Book

3. Customary Law Systems

Customs are rules of behavior, and when they have an important effect on people they become law.
Customary legal systems continue in many parts of the world, but they have usually been modified
as the legal systems have been modernized. For example, some aspects of Aboriginal customary law
have gained increasing recognition in the modern Australian legal system since the 1970s. The
process has accelerated since a decision was handed down in the case of Mabo V Queensland.
European law was largely customary in the early middle ages, but statute law had become more
widely recognized by the end of the thirteenth century. This was inevitable as society was becoming
more complex and the population was growing. Customary law has a disadvantage in that it is
localized and not often recorded in written form, so that its content may be uncertain. It may not be
understood by people from another area, or its meaning may be disputed.
In Aboriginal and Torres Strait Islander societies the law existed to maintain social organization and
cohesion and the sense of connection between the people, the spirits and the land. Laws relating to
Kinship were important, as were laws of a religious nature. Communities were very small, usually
consisting of less than one hundred individuals living a nomadic lifestyle.
Interpersonal relationships were invariably critical in such a society. It was also important to define
the individual’s and the group’s relationship to the spiritual, personal, kinship and economic
dimensions of everything in their environment.
The laws of Aboriginal and Torres Strait Islander peoples seem strange to many Europeans. For
example, certain animals are taboo and may not be hunted by the community. The concept of the
taboo is unfamiliar to some Europeans but in fact serves to protect species from over-hunting.
Similarly, Customary law forbids hunting in certain areas, creating sanctuaries to which animals can
retreat and breed.
Law in Aboriginal and Torres Strait Islander Societies is not found in written form but instead is
based upon stories handed down from generation to generation in a strong oral tradition. Proper
conduct is explained through myths and legends, and elements of the law can also be seen in art.
The spirits both define the law and are above it; at times they are shown to behave in way not
permitted to ordinary mortals.
Example of religion law: Islamic Law (sharia)
The Islamic legal system applies to some extent throughout the Islamic world. In particular it
will apply to issues of personal status where the person is a Muslim e.g. in Malaysia. Islamic law
is not an independent legal system. It is part of the Islamic religion which lays down rules of
behaviour. It is not therefore the function of law to change according to man’s circumstances but
for the law to adapt man’s circumstances to the divine will.

Islamic Law has four sources:-

 The Qur’an – The holy book of Islam. This is the Fundamental source of law
 The Sunna. This is a collection of statements of the Prophet Mohammed which is a
guide to believers.
 The Ijma. This is the Consense of all living legal scholars on the duties of the faithful.
 Qiyas. This means that judges must apply the Koran, the Sunna & the Ijma to other
circumstances but cannot change the law.

Source: Lancote Jr Meltz D. (2005) Business Law Ethics. University of Technology, Sydney.
Pearson’s Education Australia.

Socialist/Communist Law
Socialist law is the official name of the legal system used in Communist states. It is based on the
civil law system, with major modifications and additions from Marxist-Leninist ideology. Socialist
law systems provide for most property to be owned by the state and having special courts and laws
for state enterprises.
Chinese Socialist law
Among the remaining communist governments, some (most notably the People’s Republic of
China) have added extensive modifications to their legal systems. In general, this is a result of their
market-oriented economic changes. However, some communist influence can still be seen – for
example, in Chinese real estate law there is no unified concept of real property; the state owns all
land but often not the structures that sit on that land. A rather complex ad-hoc system of use rights to
land property has developed, and these use rights are the things being officially traded (rather than
the property itself). In some cases (for example in the case of urban residential property), the system
results in something that resembles real property transactions in other legal systems. In other cases,
the Chinese system results in something quite different. For example, it is a common misconception
that reforms under Deng Xiaoping resulted in the privatization of agricultural land and a creation of
a land tenure system similar to those found in Western countries. In actuality, the village committee
owns the land and contracts the right to use this land to individual farmers who may use the land to
make money from agriculture. Hence the rights that are normally unified in Western economies are
split up between the individual farmer and the village committee.
Differences between Civil & Common Law Systems
Under the civil law system, there is no formal requirement that judges follow the doctrine of
precedent, but decisions of the highest courts in the hierarchy are highly respected and are
unlikely to be departed from .
If A further important difference arises in procedure. Under the common law system, the adversarial
procedure is used. This basically results in a continuous trial once the hearing of a matter
commences, with both sides working out tactics beforehand and possessing the right to compel the
other side to produce documentary evidence for pre-trial inspection as well as interviewing the
witnesses intended to be called to see what evidence they will give. The result is that the nature and
order of witnesses is up to the lawyers for each party to determine, with the judge playing a
relatively passive role in the actual conduct of the case. Under the civil law system, cases are heard
in sessions so that each party has the opportunity to consider any evidence or other matter which it
might wish to call in reply to evidence given. The judge has a far more important role in questioning
witnesses, advising the lawyers presenting cases, so as to establish the truth of the matter which is
being litigated. In particular the judge will endeavour to ensure that any errors made in presentation
of the case are corrected. This technique is sometimes called the inquisitorial system. The judge
cannot however call a witness on his or her own motion, but must rely on those called by the parties.
Another major difference is that unlike the common law system where a witness may be limited in
the evidence that he or she gives due to what are known as the rules of evidence, there are no such
limitations in the civil law system so that it is possible for a witness to give hearsay evidence or be
asked leading question i.e. ones which suggest what the answer might be, neither of which is
permitted under the common law system.
Finally the organization of the civil law system court and legal system is different. Most courts will
have a panel of judges hearing a case, rather than an individual judge as is the practice in the
common law world.
Under common law system, judges are appointed after practicing professionally as lawyers. Such an
appointment may be made, for example, directly to the High Court.
In civil law countries, judges follow a separate career path to practitioners once they complete a
law degree. They attend special judicial training and then may have to sit for further
examinations before being appointed as judges. Their promotion through the hierarchy of courts
depends on the assessment of a promotions committee, considering performance assessments by
Presidents of the courts to which the judge has been assigned.