This blog contains some basic information related to the legal domain, and this will give you a good idea on how legal systems work if you are new to this area. I am currently working on a project that involves some aspects of the legal domain and i decided to blog the knowledge I have gained so far. If you are new to the legal domain and if you are interested in learning some basics, you have come to the right place. Most of the legal terms are explained below as well.
What is Law?
Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. This is basically about the principles and regulations established in a community or state, by some authority, and applicable to the people living in it. State enforced laws, can be made by a collective legislature (explained below) or by a single legislature, which finally results in statutes (explained below).
These statutes can be either done by an executive through decrees and regulations, or by judges through precedents (explained below). A decree is a rule of law usually issued by the head of state like the president or monarch. A regulation is an abstract concept of management of complex systems according to a set of rules and trends.
A general distinction can be made between the following two:
a) Civil Law Jurisdictions (explained below)
b) Common Law
1) Civil Law
This law is also known as the civilian law or Roman law. Civil Law originated in Europe, and it was intellectualized within the framework of late Roman Law. One of the most important features about Civil Law is that, it has codified its core principles into a referable system, which serves as the primary source of law. This can be contrasted with Common Law systems, where the intellectual framework comes from judge made decisional law (case law) which gives precedential authority to prior court decisions.
Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules
2) Common Law
Common Law is also known as Case Law (explained below) or Precedent (explained below). Common law and equity, are legal systems, where the source is actually the decisions made by judges in cases (Case Law). Alongside every legal system there is a legislature, that passes new laws and statutes.
Legal Systems
1) Regulatory Law
This is the law promulgated by the executive branch. Regulatory law contrasts to statutory law promulgated by the legislative branch, and common law or case law promulgated by the judicial branch as shown in the diagram above.
2) Case Law
In simple terms, it is the law which has been established due to the outcome of former cases. This is something that has made various interpretations on law and therefore can be cited as precedents. This is basically about a set of rules on law which is guided by previous rulings. These are distinguished from statutory law (explained below), which are the statutes and codes enacted by legislative bodies. Case Laws also distinguish from regulatory law, which are regulations established by governmental agencies based on statutes.
3) Statutory Law
This is also known as statute law, which is a written down law by a legislature or a single legislator (absolute monarchy). This is opposed to oral/customary law, regulatory law, or common law of the judiciaries. Two main parts in statutory law.
Codified Law: Refers to the statutes that have been organized by subject matter.
Private Law (particular law) - Statutes originated as private bill, which is a law affecting a single person or a small group of persons.
Cases
Legal Case
This is a dispute between opposing parties, which is resolved by a court or through an equivalent legal process. In each legal case, there are two main parties namely, an accuser and one or more defendants. A legal case may be either a civil case (explained below) or a criminal case (explained below).
Accuser: a person who claims that someone has committed an offence or done something wrong.
Defendant: an individual, company, or institution sued or accused in a court of law.
1) Civil Case
A civil case is sometimes known as a lawsuit or a controversy. The two parties have different names in civil cases. The accuser is known as the plaintiff and the defendant is known as the defendant as usual. The process begins when a plaintiff files a document called the complaint informing the court of the wrong that the plaintiff has allegedly suffered because of the defendant, and requesting a remedy. The remedy will be prescribed by the court if the plaintiff wins the case. The remedies requested, could be one of the following.
Money
An Injunction (where the defendant is required to perform or refrain from doing some actions)
Declaratory Judgement (which determines that the plaintiff has certain legal rights)
2) Criminal Case
A criminal case begins when the defendant is charged with an offense by a government official called a prosecutor or district attorney or the grand jury when the defendant is suspected of a crime. When settling a criminal case, the following options are available.
trial (risks greater penalties than would normally be imposed through a plea bargain)
plea bargain (defendant agrees to plead guilty to a lesser charge than that which was originally brought)
Separation of Powers
Separation of Powers
The separation of power refers to the division of responsibilities, into distinct branches to limit any one branch from exercising the core functions of another.
Under this model, state is divided into branches, each with separate and independent powers and areas of responsibility, where each branch will not have conflicts with one another. A typical division of branches is
Legislature
Executive
Judiciary
In contrast, in parliamentary systems, there is fusion of powers, where some of the above are unified.
1) Legislature
A legislature is considered to a be deliberative assembly (a gathering of members (of any kind of collective) who use parliamentary procedure to make decisions), which has the authority to make new laws, for a political body such as a country or a city. Legislatures for important parts of most governments.
The laws, enacted by legislatures is known as legislation (Statute). Legislatures observe and steer governing actions, and they usually have the authority to amend the budget or budgets involved in the process. The members in the legislature are called legislators. In a democracy system, legislators are elected through and election.
Legislatures are of four types.
Supra-national (European Parliament)
National (United States Congress)
Regional (National Assembly of Wales)
Local (Local Authorities)
Legislation
This is also known as Statutory Law. This is a law enacted by a legislature or other governing body. Before the item in the legislation becomes a law, it is known as a bill. Legislations serve many different purposes.
To regulate
To authorize
To outlaw
To provide (funds)
To sanction
To grant
To declare
To restrict
In a non-legislative act, it will be adopted by an executive or administrative body.
Under the Westminister system, an item of primary legislation is known as an Act of Parliament after enactment.
A legislation is usually proposed by a member of the legislature (a member of the congress or parliament), or by an executive, whereupon it will be debated by members of the legislature before passage. Most large legislatures, enact only a small fraction of the bills per session.
Three main functions under the doctrine of Separation of Powers
Legislature - Have the power to make law (make law)
Judiciary - Have the formal power to interpret legislation (interpret law)
Executive - Can act only within the powers and limits set by the law (enforce law)
Legislator
Is also known as a lawmaker. This is a person who writes and passes laws, especially a member from the legislature. Legislators are usually politicians and are often elected by the people of the state.
2) Judiciary
This is also known as a judicial system or a court system. This is the system of courts, that interprets and applies law in the name of the state. This also provides a mechanism for resolution of disputes.
In other nations, judiciary can make law, which is known as Common Law, by setting precedent for judges to follow, in contrast to statutes made by the legislature. In many cases, the judicial branch has the power to change laws through the process of judicial review.
Judicial Review
This is the process, under which executives and legislative actions are subject to review by the judiciary. A court with judicial review power may invalidate laws and decisions, that are incompatible with a higher authority. An executive decision may be invalidated for being unlawful, and a statute may be invalidated for violating the terms of a written constitution.
Judicial review is one of the checks and balances in the separation of power. This can supervise the legislative and executive branches when the latter exceed their authority.
3) Executive
An Executive is the branch holding authority in and holding responsibility for the governance of the state. In simple terms, it is basically about branch that governs the state. The Executive executes and enforces law. The Executive enforces the law, which is being written by the legislature and interpreted by the judiciary.
Judicial Hierarchy
Judicial Hierarchy
The judicial hierarchy of a state differs from one another. The following hierarchy of courts is taken from the Sri Lanka legal system [1].
The Supreme Court
The Supreme Court of the Republic of Sri Lanka skill be the highest and final superior Court of record. The Supreme Court shall consist of the Chief Justice and of not less than six and not more than ten other judges.
Powers of the Supreme Court
Appellate Jurisdiction - Final and conclusive civil and criminal appellate jurisdiction on appeals from the Court of Appeal or any Court of first Instance.
Constitutional Jurisdiction - Interpretation of the Constitution and to determine whether any bills an inconsistent with the Constitution.
Protection of fundamental rights. - Freedom of thought, freedom of Conscience, Freedom from torture, Right to equality, Freedom from arbitrary arrest, Freedom from arbitrary detention, Freedom of speech, assembly and association.
Jurisdiction in respect of the breaches of Parliamentary privileges. - Presidential election-Jurisdiction in election petitions; the enrollment, suspension and removal of attorneys-at-law.
The Court of Appeal
The Court of Appeal consists of the President of the Court of Appeal and not less than six and not more than eleven other Judges. Next to the Supreme Court, the Court of Appeal shall be the highest and final superior court of record.
Powers of the Court of Appeal
Appellate Jurisdiction - Appellate Jurisdiction over the courts of first instance and other judicial institutions.
Jurisdiction for correction - Jurisdiction for correction of all errors in fact or in law.
Cognizance of matters and things of Courts of First Instance May call for case records and examine them.
Powers to impose punishment for contempt of Court. - Imprisonment for a period not less than 08 years can be imposed.
Power to issue writs - Writs of certiorari , procedendo, mandamus and qvo warranto can be issued.
The High Court
The High Court is the only Court which exercise the jurisdiction of the Court of First Instance and the appellate jurisdiction. It exercises the civil jurisdiction as well as the criminal jurisdiction.
The High Court of Civil Appeal
The High Court of Civil Appeal has been established with the objective of expediting the civil appeals in District Courts Appeals in District Courts are heard by the High Court of Civil Appeal.
High Court And The Provincial High Court
High Court cases can be heard in the presence of a Judge of the High Court or a Jury. The High Court take cognizance of cases to be heard on submission of indictments submitted by the Attorney General.
Commercial High Court
Commercial High Court is empowered to hear cases involving commercial transactions worth of which exceeds three million rupees . Jurisdiction over the cases falling under the Intellectual Property Act.
The District Court
Cases over which the District Court has jurisdiction to take cognizance of, within its jurisdiction, all civil income and insolvency testamentary cases marital disputes, family jurisdiction over divorce and nullity of marriage cases, guardianship of idiots and persons of unsound mind and guardianship of their property, testamentary cases of person deceased without leaving a last will, care of minors and their property.
The Magistrate Court
Jurisdiction over the criminal cases filed under the Penal Code and other laws within its jurisdiction.
First mortem examinations.
Post mortem examinations.
Issue of Warrants of Judicial orders to arrest and produce suspected persons.
Issue of search warrants.
Ordering persons to enter into bonds of good conduct and preventive jurisdiction on public nuisance
The Primary Court
The Primary Court exercise civil and criminal jurisdiction within its area or jurisdiction.
The value of claim for compensation should not exceed Rs. 1500/-.
Cases under Section 66 of the Primary Court Procedure Act.
Hearing of land disputes involving threat to or breach of peace.
The Judicial Service Commission
The Judicial Service Commission consists of the Chief Justice and two other Supreme Court Judges appointed by the President. The chief Justice shall be the Ex Officio Chairman of the Judicial Service Commission. The Secretary shall not hold the office of the Judge of the Court of First Instance on completion of his tenure of office as Secretary. The Secretary to the Judicial Service Commission shall be a Senior Judge of the Court of First Instance. Interference in the Indicial Service Commission work is an offence punishable with a fine of Rs. 1500/- and imprisonment after hearing the case in the presence of the High Court without a jury.
Key Words
Precedent (Authority)
In legal systems with the base of common law, a precedent is a principle or rule, established in a previous legal case, that is either directly binding on or persuasive for a court or other tribunal , when deciding subsequent cases with similar issues and facts. The Common law legal systems play a major role when deciding cases where, consistent principles rules give out a predictable outcome and observance of precedent is the mechanism in which the goal is achieved. Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases
Statutes (Legislation)
A statute is a written law, passed by a legislative body. This is a formal written enactment of a legislature (explained below), that governs a state, city, community or country. In general, a statute would command something, prohibit something or declare certain policies. Statutes are written by legislative bodies (legislatures) and signed into law by executive bodies. These are distinguished from precedents (explained below), case laws (explained below) and regulations (explained below). Precedents and case laws are decided by courts whereas regulations are issued by government agencies.
Act of Congress
This is a statute enacted by the United States Congress. It can be public law, or private law.
Act of Parliament
This is also known as primary legislation. These are statutes passed by the parliament (legislature).
Constitution
This is a set of fundamental principles or established precedents, according to a state or organizational body which is governed. These rules when combined, makes up the entity which is being governed.
When these principles are written down together as a single document or as a set of legal documents, those documents are said to embody a written constitution.
Westminister System
This system is a parliamentary system of government. The term closely comes from the Palace of Westminister, which is the seat of the British Parliament. The system is a series of procedures for operating a legislature.
Tribunal
A tribunal is a body established to settle certain types of disputes. This is normally an assembly of people, who has some special knowledge about a domain, who are called to resolve a dispute related to that domain. This is usually less formal and faster than a judge and jury call.
References