To understand the legal system of any nation, it is important to know the various classifications of law. Undoubtedly, law is a very complex concept and thus not amenable to straight definition. The classifications is not easily identifiable also. The meaning that a particular classification possesses is based on the context in which is is being used.
Having said that, in this article, we will be taking a bird’s-eye view of all the classifications of law. Coupled with that, we will also dig deep into the origin, characteristics and differences between the different type of classifications of law.
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1. Common law and civil law
It is more common to refer to them as the “common law tradition” and the “civil law traditional“. Which contrasted with the Common Law Tradition, the Civil Law tradition is that whole body of law practised by the continental countries of Europe and Latin America and developed from Roman Law. It is the oldest surviving legal tradition dating back to 450 B.C.
The Roman of old developed two types of law – just civil which applied to citizens of the Roman Empire and the jus gentium which applied to non citizens. The Jus gentium became the basis of international Law.
The Jus Civil survived the Dark Ages and was taught in the medieval universities as the basis of rational principles of law. It was subsequently adopted by the countries of Europe and their dependencies and remains today one of the most practised legal traditions in the world.
Common law, when contrasted with Civil Law, is essentially a product of English history. It was developed by courts of England. It is currently administered throughout the commonwealth (expect Scotland and South Africa) and includes the common Law and Equity of the English Court.
Differences between Common Law and Civil Law
The differences between Common Law and Civil Law may be summarizes as follows:
(1) The Civil Law emphasizes doctrinal writings of jurists and relies less on court judgments, while the Common Law emphasizes judgment of court and places far less value on writing of learned men.
(2) The Common Law emphasizes the adversarial procedure wherein the parties are at “war” with each other while the judges play the role of the impartial arbiter. Civil Law, on the other hand, emphasizes the inquisitorial procedure with the judges himself descending into the arena and finding out the truth.
(3) The Civil Law tradition emphasizes codification. I.e bringing all the laws concerning a subject matter together while the common law tradition does not encourage codification.
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2. Common law and Equity
The term Common Law, when contrasted with Equity, means the law developed by the old Common Law court of England, namely, the Kings, Bench, the Court of Common Please and the Court of Exchequer.
England originally possessed customs, some of which were practiced only in certain sections of the country while some were common throughout England. Pretending to identify and enforce those customs common to the whole of England, the Common Law Courts gradually developed a uniform system of law based on those customs common to the whole realm. This system of law becomes known as common law and is found only in court judgments.
As time went on, common law became too rigid and just refused to grow and adapt to changing circumstances. New situations continued to emerge which were not covered by Common Law rules. The Common Law remedy of damage also proved inadequate and ineffective on some occasions. Further, it become so formalized that mere errors in technicality can lead to failure to get a remedy.
In this circumstance, people became aggrieved by the injustice of the Common Law and began to petition the King for redress. The king then sought the advice of his secretary and “keeper of conscience”, the Lord Chancellor, as to what he should order.
He assigned the job of treating the petitions and reaching decision on them exclusively to the Lord Chancellor normally relied on his conscience in the reaching particular decisions unlike under the common law where the judges relied on precedent or earlier decisions of judges.
These decisions of the Lord Chancellor became a branch of law called “Equity”, which came to supplement the common Law. Equity principles, because of their origin of being based on conscience, are tied to consideration of moral. Equity later became applied by the Court of Chancery, a court set up by the Lord Chancellor when the petition became too many for him to handle alone.
Equity, too, later acquired the rigidity of the Common Law. The Judicature Act 1873-1875 fused the administration of common law and equity in England by allowing each of the courts existing in England to apply both type of law. However, we’re both types of law are in conflict, Equity prevails.
While the Common Law remains the main Law of England, Equity has made a remarkable contribution to the law. Firstly, it developed a separate area of law called the Law of Trusts. Secondly, it recognized and protected new property rights and also intervened to protect the borrower. It also new legal remedies too.
3. Civil law and criminal law
Civil law, in this context refer to the law which defines the right and duties of persons to one another and provides a system of remedies. Amongst the more important examples are the laws of contract, tort, property and commercial law. It excludes only criminal law.
Criminal law is concerned with acts or omissions which are contrary to public order and society as a whole and which renders the guilty person liable to punishment in the form of fine or imprisonment. Some wrong can, however ground both civil and criminal actions such as assault.
Compensation to the victim, one of the objectives of civil action, is also possible in certain criminal actions. For instance, under section 261 of the Criminal Procedure Law, Cap 48, Laws of Bendel State 1976, the court may other any property found to have been converted or detained to be restored or award damages in lieu.
The procedure in prosecuting both civil and criminal actions are different. The standard of prof is also different.
Public and private law: The Roman Legal System practised in Civil Law countries has two separate systems of courts, each administering private law and public law respectively. In the common law tradition, the two types of law are administered by the same courts while public law governs the relationship between the different arms of government and the structure and responsibilities of the different arms.
Private law also governs legal transactions between citizens and the state. The law of contract, for example, is private law but it governs not only legal transactions between the citizens but also between citizens and the state.
Public law in common law countries includes constitutional law, administrative law, revenue law and criminal law. In strictly public law areas, different procedures exist for the enforcement of the duties of state agencies such as judicial review, application under the Fundamental Rights (Enforcement) Rules.
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4. Common law and Legislation
When contrasted with legislation, Common Law is essentially case law or unwritten law. It will, therefore include Common Law, Equity and the entire case rules as enunciated by our own court. Legislation, also known as unwritten law or statues, includes all laws including any subsidiary instrument made under the power conferred by statute.
5. Substantive and Procedural law
Substantive law consist of laws which define the right and duties of person. They guide the court in deciding whether a right exists and when it is breached and the remedy for such breach.
All the subject area taught in the universities with the exception of Evidence Law, Civil and Criminal Law procedures, deal with substantive law. Procedural law concerns those rules which determine the course of action. They govern the machinery rather than the subject matter litigation.
Basically, these are the various types or classifications of law you need to know. A critical analysis of these classifications shows that law is indeed a big field of study. It is therefore important to understand these different types of law as a law student or a practicing law. And I believe this article has clearly explained everything you are supposed to know about the types or classifications of law.
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