The legal system lecture outline
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LESSON 1
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TOPIC 1: THE LEGAL SYSTEM
1. Law and law of the State Law is a set of general rules created by the State to regulate the relations among the people living within the territory of a definite State (Uzbek law, Russian law…etc,). Law is created to maintain the social order of man living in society. The law has to be obeyed if it fulfills with the constitutional principles, if not the law must be challenged in court. After we have covered the meaning of law, let’s look at other very important legal definitions: The rule of law is one of the most important constitutional principles; it means the supremacy of law over man. According to the rule of law every person, irrespective of rank and status in society, is subject to the law1. The rule of law in the Republic of Uzbekistan: Article 15 of the 1992 Uzbek Constitution “The Constitution and the laws of the Republic of Uzbekistan shall have absolute supremacy in the Republic of Uzbekistan. The state, its bodies, officials, public associations and citizens shall act in accordance with the Constitution and the laws” The rule of people means the supremacy of the decisions adopted by the majority. Democracy is the manifestation of this important constitutional principle. The contrary of the rule of people is the rule of man (dictatorship) and the rule of God (religious fundamentalism). Ideally the rule of people should always go together with the rule of law. Public law means that one of the parties in legal relations must be a State and the opposite party may be a physical person2 (individual) or a legal person (company). Public law involves relations between private citizens or organizations and the government (Criminal law, Constitutional law, Administrative law, Taxation law). Sometimes the State engages in contracts as an individual; in these cases we are not talking of public law and it is a matter of private law with two characteristics: The Government (State or Administration) cannot go bankrupt. The Government has the right of delaying the payments in a contractual relationship if it is beneficial for the community. An example of Public Law is Criminal Law which deals with breaches of legal rules from minor matters such as reckless driving to serious crimes like murder and armed robbery. A “Crime” is committed when the criminal law is breached. There are two main characteristics of criminal law: a. Protection: criminal law has a public element. Conduct is made criminal if it threatens society, its well being, security and good order. Criminal law involves the enforcement by the State of laws designed to protect the individual and the community. The State accepts responsibility for the detention, prosecution and punishment of offenders. b. Punishment: is the consequence of an offence considered criminal. The punishments that the court may impose include fine, imprisonment, caning or probation. Private law is concerned with the rights and duties of individuals towards each other. Private law is concerned with disputes among private citizens or private organizations (Civil Law, Contracts, Labour law, Corporations, Family Law). Those individuals can be either physical persons (individuals) or legal persons (companies). The parties entering into private relations are equal in relation to each other. An example of Private Law is Civil Law which deals with the private rights and duties, that arise between individuals. The purpose of the civil law is to remedy the wrong that has been suffered. Enforcement of the civil law is the responsibility of the individual who has been wronged. The State’s role is to provide the procedure of the courts necessary to resolve the dispute. The liability for breaching civil laws usually involves the payment of financial compensation to the injured party. Thus, when a wrong is committed, the criminal law punishes whereas the civil law compensates. Examples of branches of civil law are: contract law, law of tort, family law and property law. Substantive Law defines the legal rights and obligations and tells us what is legally right and wrong. Overall gives us the content or substance of the law, for example the 1992 Uzbek Constitution. Procedural Law covers the rules governing the manner in which the law has to be administered. Procedural law tells how to sue someone, what documents need to be filed etc. Common Law is the law created by the decisions of the Judges it is also called “doctrine of precedent”. Statute Law is the law made usually by Parliament. International Law can be defined as the set or rules governing the relationship between independent States. Municipal Law can be defined as the laws governing each independent State. 2. Law, Morality, Ethics and Religion Before we comment on the different legal systems and the importance of the litigation process (resolving a dispute in court) we must distinguish from the following 4 concepts: Morality is a code of conduct or rules which are established in a particular society. It is based upon the system of norms accepted by the majority of the people in a given social environment (dress code, food and drinking habits, etc); A code of ethics is a written set of guidelines issued by an organization to its workers and management to help them conduct their actions in accordance with its primary values and standards (the code of ethics of the medical doctors, lawyers, priest etc); Religious norms are the system of rules of conduct established by a divine, non human power (Islam, Catholicism, Judaism, etc); We already know that legal norms are a system of general rules established by a legislative authority of a State, which must be obeyed by all in a particular territory; Morality, Law and Religion overlap to some extent: robbery, murder, cheating. Morality is based on values like principles of right, good and fairness that are acceptable by society to distinguish between wrong and right. For example, adultery and abortion are considered morally wrong. In fact most of the moral values have been adopted as part of the law of the state. Unlike law, however, moral values are not imposed or enforced by the authority. Immoral acts like adultery are not crimes and abortion is legally allowed. But the law will only enforce a moral obligation if it is also a legal obligation. An example of this is: In the event of a divorce, the ex-husband is under a moral obligation to maintain the children. It is also a legal obligation. The ex-wife can take the ex-husband to court if he refuses to maintain the children. The main differences between law and morality are: Law is created and enforced by a State. Moral principles are formed irrespective of a will of a governmental authority and applied through the institute of public opinion; Morality is wider that law. Moral principles cover all areas of human relationships such as friendship, love, etc; The terminology of the evaluation of a person’s conduct is different. In law the person’s conduct can be lawful or unlawful, but according to moral rules it can be just or unjust, kind or cruel, nice or unpleasant, bad or good, etc; Legal norms are more certain and well defined. Moral rules are more flexible. The main difference between law and religion is based upon sources of law. Law is created and enforced by the State. Religious norms are created by God and enforced by religious (ecclesiastical) courts. Legal norms are easier to change and adapt than religious norms.
3.Legal systems of the World Definition of legal system. Law is ineffective unless the society also develops a legal system, i.e. institutions (Government, Parliament, Courts…etc) and ways to enforce the law and to make the process transparent. There are as many legal systems as countries in the world but for academic purposes and according to the main source of law (where the law is created) in the contemporary world there are three legal systems: Common law legal system which consists of principles established by judges in cases brought before them, which the judges then applied to similar cases arising in the future. Common law developed after the Norman Conquest 1066 as the law common to the whole of England, rather than local law. As the court system became established under Henry II in the 12th century, and judges' decisions became recorded in law reports, the doctrine of precedent developed. This means that, in deciding a particular case, the court must have regard to the principles of law laid down in earlier reported cases on the same or similar points. Hence, common law (sometimes called ‘case law’ or ‘judge-made law’) keeps the law in harmony with the needs of the community-society where no legislation is applicable or where the legislation requires interpretation. In common law legal systems, the law is created by judges. A decision in the case currently pending depends on decisions in previous cases and affects the law to be applied in future cases. When there is not authoritative statement of the law, common law judges have the authority and duty to make law by creating “precedent”. The body of precedent is called “Common Law” and it binds future decisions. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision; this principle is known as “Stare decisis” or “The decision stands”. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, it will decide as a matter of first impression. Thereafter, the new decision becomes precedent, and will bind future courts under the principle of stare decisis. The application of the doctrine of stare decisis from a superior court to an inferior court is called vertical stare decisis and the idea that a judge is bound by (or at least should respect) decisions of earlier judges of similar or coordinate level is called horizontal stare decisis. The existence of the doctrine of precedent or stare decisis ensures two important principles: 1. Consistency: grounded is the concept of fairness. If in case “A” the result “X” was obtained, then in case “B” (assuming that case “B” is similar to case “A”), result “X” should also follow; 2. Certainty, Predictability: law cannot be administered on the basis of “Opinion”. Judges may vary in their personal opinions as to what is right and what is wrong. It is thus necessary that somebody should have a final say as to avoid uncertainty. Basically, according to the common law system, the decisions of the judges create law. However, nowadays, legislation enacted by Parliament (also called statute law), has become the most important source of law. 3. Common Law is dynamic and not closed by statute or precedent. New rules of law will from time to time be authoritatively laid down to meet new circumstance and the changing needs of society. 4. Common Law accumulates a great wealth of detailed rules for reference. It is much richer in detail than the code of law. 5. Common law is practical in nature. The rules laid down are the product, not of academic speculation but of difficulties that have actually risen. Thus, it is in touch with everyday life.
Civil law legal system is based on Roman law and it is followed by most of European countries, Asia, the CIS republics (Uzbekistan). The main source of law is the legislation enacted in Parliament and Decrees and Resolutions issued by the Government. In continental civil law system countries, judgments are not considered a main source of law. In these countries the law is usually codified: Constitutions, Civil Code, Criminal Code, Labour Code…etc. The Features of a civil law system include: There is generally a written constitution based on specific codes (e.g., civil code, codes covering corporate law (business law), administrative law (State structure), tax law, enshrining basic rights and duties; administrative law is however usually less codified and administrative court judges tend to behave more like common law judges; Only legislative enactments are considered binding for all. There is little scope for judge-made law in civil, criminal and commercial courts, although in practice judges tend to follow previous judicial decisions; constitutional and administrative courts can nullify laws and regulations and their decisions in such cases are binding for all. In some civil law systems, e.g., Germany, writings of legal scholars have significant influence on the courts; Courts specific to the underlying codes – there are therefore usually separate constitutional court, administrative court and civil court systems that opine on consistency of legislation and administrative acts with and interpret that specific code; Less freedom of contract - many provisions are implied into a contract by law and parties cannot contract out of certain provisions. 3. Muslim law legal system is followed by countries like Saudi Arabia and Iran. It is a rigid system of law no subject to changes. The main legal source is the Koran. This legal system imposes more obligations than rights to individuals. The Islamic concept of law and justice is entirely different from that of the secularized countries of the West. Muslims believe Allah, through the Koran, reveled the universal laws which govern not just the affairs of man, but the very laws of nature. Any man who disobeys these universal laws will find himself at odds not just with secular authority but with his own nature. Every Muslim must accept that every action and thought is recorded by Allah’s angels, and can be no way of escaping punishment for disobedience following the Day of Judgment. 4. Where does the law come from (the “sources of law”)3? There are two different meanings of sources of law: Sources of law are the places-institutions were the law is created (Parliament, Cabinet of Ministers, The Court, Presidential Office…); Sources of law are the origin (document) from which rules of human conduct come into existence (Holy Koran, Constitution, laws in general like the driving code of the Republic of Uzbekistan, Presidential Decrees, Judicial decisions in the common law legal system); According to the origin, the laws applied by most legal systems (common law legal system and civil law legal system) are derived from 4 principal sources in general: a. The Constitution of the country; b. Legislation (statutes) enacted by Parliament (i.e. new law made by Parliament); c. Subsidiary legislation; and d. Common law (judge-made law or case law). The Constitution and statutes (legislation) are referred to as written law whereas the common law is referred to as unwritten law. 4.1 The Constitution The Constitution establishes the basic principles, governmental structure, the law of the nation and the fundamental rights of the individual. It is the supreme law of the land, which means that any part of a law, which does not agree with the Constitution, is void. The best example for us is the 1992 Constitution of Uzbekistan which is an amazing legal document consisting of 128 articles. Uzbekistan has had 5 Constitutions in History: 1924, 1927, 1937, 1978 and 1992. The 1992 Constitution of Uzbekistan has the following characteristics according to the classification given by Joseph Razz (Columbia University, Oxford University):
It is a written document; It follows the civil law legal system; It aims for a legal democratic open market ideology; It is unitary despite the fact that Uzbekistan is divided into 12 regions; It is the supreme law of Uzbekistan (before, the previous Constitutions were subordinated and the Uzbek Socialist Republic was supreme); It is rigid, very difficult to change; It is presidential executive (the President is elected directly by the citizens like USA). Parliamentary executive is when the President is a member of Parliament and is elected by the Parliament (UK, Spain); It is Republican. Some important articles of the 1992 Constitution of Uzbekistan are: Article 36. Everyone shall have the right to own property. Article 61. Religious organizations and associations shall be separated from the State and equal before law. The State shall not interfere with the activity of religious associations. 4.2 Legislation These are rules enacted (made) by Parliament in the form of Statutes. Examples are Road Traffic Act (Cap 276), The Consumer Protection (Fair Trading) Act 2003, Companies Act (Cap 50). The purpose of legislation is: a. To introduce new law e.g. the compulsory wearing of seat belts in cars; or b. To repeal existing law which is no longer relevant; or c. To consolidate (put together) all the law on a subject e.g. the Women's Charter put together the law on divorce, rights and duties of married persons and so on; or d. To implement government policy e.g. under the Residential Property Act (Cap 274) foreigners are not allowed to own landed properties like a bungalow, terrace or semi-detached house. When Parliament decides to make a new law, the proposed law starts as a Bill, which is usually introduced by a government minister. The Bill goes through 3 readings. The first reading is when the Bill is formally introduced into Parliament. During the second reading, the minister responsible will give a speech explaining the purpose and reason behind the Bill. A debate and examination of the Bill will follow. Sometimes an important and controversial Bill may be sent to the Select Committee, which will then make a report. An example is the Goods and Services Tax Bill where the Select Committee welcomes views from members of the public and some of the views may be included in the Committee's report. Finally, the Bill goes through the third reading. Amendments, if any, may be inserted at this stage. The Bill is then put to a vote. A simple majority is required as a general rule. Once the Bill is passed by Parliament it is presented to the Presidential Council for Minority rights. If the Council concludes that the Bill does not operate unfairly against any minority group it is then presented to the President for his assent. Once the President assents to the Bill it becomes an Act of Parliament. But the law comes into force only on the date of its publication in the government Gazette. 4.3 Subsidiary legislation A statute may give power to a minister or other persons or bodies to make rules or regulations for specified purposes. A statute may deal with technical matters that require technical knowledge. It will lay down the outline and general principles leaving the minister responsible or specified body to fill in the technical rules and regulations. This method saves Parliament time and is convenient. 4.4 The Common Law This is judge-made law. They are legal principles derived from case law. When an issue is presented to a court for resolution, it looks first to the Constitution and statutes to find out whether they provide a rule of law to resolve the dispute. If neither provides such a rule, the court will apply the rules of common law. Common law is based on the doctrine of judicial precedent. The doctrine means that when a judge decides on a case, he must always look back to see how previous judges have dealt with previous cases (precedents) involving substantially similar facts. In looking back, the judge will expect to discover those legal principles, which are relevant to the case before him. He must follow the precedents and principles of law declared by superior courts: Examples:
The doctrine of judicial precedent means that there is consistency, fairness and predictability in the application of the law. When there is a conflict between Case Law and Statute Law, as a rule the statute will prevail (win) as they are written law and is instituted by the government. However the statute must not conflict with the constitution which is the highest source of law.
Understanding that a government's role is to protect individual rights, but acknowledging that governments have historically been the major violators of these rights, a number of measures have been derived to reduce this likelihood. The concept of Separation of Powers is one such measure. The premise behind the Separation of Powers is that when a single person or group has a large amount of power, they can become dangerous to citizens. The Separation of Power is a method of removing the amount of power in any group's hands, making it more difficult to abuse. The US government has a partial Separation of Powers. It distinguishes between three groups. The Executive, the Legislative, and the Judicial. They are distinguished by the kind of power they wield. The Legislative branch has the ability to enact laws. The Executive branch has the ability to see those laws enforced. The Judicial branch has the ability to decide the guilt of a party, allowing punishment. If a single group shared all three powers, they would have unlimited power. They could specify any law, arresting the 'criminal', and then decide that they are guilty. Through the Separation of Powers, though, no group can have more than one of these powers. Only through the combined use of all three can the government use force. By requiring the consent of all three branches, it increases the likelihood that the government will not initiate violent force. There are many different ways to separate the powers of a government. The US, for instance, requires those that declare war to be different from those that execute the war. Only by combining the two can a war be declared. The division of powers in the Republic of Uzbekistan is stated in article 11 of the 1992 Uzbek Constitution:
a. The Subordinate Courts; b. The Supreme Court; c. The Shariah Court (for your information only: it deals with religious, matrimonial and related matters concerning the Muslim community). 6.1 The Subordinate Courts The Subordinate Courts consist of the following: a) Juvenile Courts. This court deals with offences committed by children and young persons. A "child" is a person below the age of 14; a "young person" is a person between the age of 14 and 15. Persons below 16 who commit criminal offences are tried by this court. b) Coroner's Courts. This court finds out the cause of death where there is reason to suspect that a person died in an unnatural way e.g. died in an unknown way or died violently. The court will also investigate whether any person is criminally responsible for the death and name him as a potential defendant. In this course we are more concerned with the Small Claims Tribunal, Magistrate’s Courts and District Courts. c) Small Claims Tribunal These courts have limited jurisdictions (power). The court can only determine a dispute: 1) Concerning contracts for goods or services; 2) If the claims do not exceed $10,000 or $20,000 if the parties agree; and 3) The claims must be brought within one year from the date the plaintiff is entitled to claim. The proceedings are conducted in an informal manner and lawyers are not allowed to represent the parties to the dispute. The parties conduct their own proceedings before a Referee who is a qualified lawyer. The parties can appeal to the High Court on grounds of law (e.g. the Referee had made an error in interpreting the law). The advantage of using the tribunal is that it is cheap and disputes are resolved quickly. d) Magistrates' Courts These are courts of first instance with magistrates presiding over the dispute. The courts have power to preside over civil and criminal matters. In civil matters, such as a breach of contract, a magistrate court's jurisdiction is limited to a claim not exceeding $60,000. For example, if A is claiming against B for $65,000 for breach of contract, the claim cannot be brought before the magistrates' courts; they have no jurisdiction to preside over the case. The parties can appeal to the High Court. But there can be no appeal if the parties agreed in writing that the decision of the magistrate court is final. In criminal matters, the jurisdiction of the court is generally limited to trying of offences punishable with fine only or of offences for which the maximum jail sentence does not exceed 3 years. e) District Courts These are courts of first instance. In civil matters, a District court's jurisdiction is limited to a claim not exceeding $250,000. But in cases where the amount in dispute exceeds this figure, the court could still have jurisdiction if the parties agree to it. In all cases, the parties can appeal to the High Court provided they did not agree in writing that the decision of the District court is final. In criminal matters, a District court's jurisdiction is generally limited to trying of offences punishable with fine only or offences for which the maximum jail sentence does not exceed 10 years. 6.2 The Supreme Court The Supreme Court [under the Constitution (Amendment) Act 1993 and the Supreme Court of Judicature (Amendment) Act 1993 consists of: a) The High Court; and b) The Court of Appeal a) The High Court The High Court is powerful and can preside over any dispute whether civil or criminal except those matters (like marriage, divorce, distribution of property) relating to the Muslim community which are administered by the Administration of Muslim Law Act (Cap 3) which is tried in the Shariah Court. It has unlimited jurisdiction in all kinds of civil and criminal matters. It is usually presided over by a Supreme Court judge when the court is in session. It is also an appellate court and hears appeals from the Subordinate Courts in both civil and in criminal matters. b) The Court of Appeal It hears appeals against any judgment of the High Court in civil and criminal matters whether the High Court is sitting as a court of first instance or an appellate court (i.e. when the High Court hears appeals from the Subordinate Courts). The court is usually presided by the Chief Justice and two Justices of Appeal. There is an automatic right of appeal in civil matter if the claim exceeds $30,000. Any lesser amount requires the permission from the Court of Appeal or a Supreme Court judge. In criminal matter, both the defendant and the prosecutor can appeal. The defendant usually will appeal against conviction of a crime and for sentence for the crime. The prosecutor may appeal if the defendant is acquitted of the crime or against the sentence, which the prosecutor considers too light. The Court of Appeal has the power to supervise the conduct of legal proceedings in the high Court. Until 1993, there was a final route of appeal from the Singapore Court of Appeal to the Judicial Committee of the Privy Council situated in London. However, this method of appeal has been ended and the Court of Appeal is now the final court of appeal in Singapore.
Civil litigation is usually commenced by the plaintiff in either the High Court or the Subordinate Courts; namely the Magistrates Court or the District Court. Although the procedure applicable to the High Court and the Subordinate Courts differs slightly it is possible to offer a general overview of the steps involved in taking a matter through the courts. The rules of civil procedure in force in Singapore with regard to High Court proceedings are contained in a book called the “Rules of the Supreme Court”. The rules of civil procedure applicable to the Subordinate Courts are contained in the “Subordinate Court Rules”. Both these books are quite similar in substance and contain the procedure to be adopted at each stage of the proceedings. A brief outline of these stages may be summarized as follows: 7.1 Writ of Summons/Summons. A Writ (short for written legal document) of Summons is an order to appear before a judge or magistrate, or the writ containing such an order. The plaintiff (the person who accuses someone in Court) commences proceedings by obtaining a Writ of Summons in the High Court or a Summons in one of the Subordinate Courts. The Writ or Summons will be presented by the plaintiff’s solicitor (Lawyer) at the registry of the court, from where it is formally sealed and “issued”. The Writ or Summons commands the defendant to make an “Appearance” before the court within a stated number of days to answer the complaint made against him. The Writ of Summons must be formally served to the defendant or his solicitor. If you are starting a case, your case cannot go forward until the other side is served with your complaint. It is very important that you serve the defendant properly. If you do not, the court may dismiss your case. 7.2 The Appearance. Once the Writ or Summons have been served the defendant must “enter an appearance” within the specified time. By entering an appearance, the defendant is submitting himself to the jurisdiction of the court and that whatever the court decides he will abide by it. It is very crucial for the defendant to file his appearance as soon as the writ or summons is received, as an appearance that passes the dateline will enable the plaintiff to obtain judgment against the defendant.
7.3 The Pleadings After the Appearance comes the “Pleadings”. These are documents which are filed into court, drafted by the respective opposing lawyers and which defines the main issues in dispute between the parties. The usual order of pleadings is as follows:
This is the first of the pleadings delivered after the issue of the writ or summons.It may be included in the writ or summons or may comprise a separate document. It sets down in summary form the circumstances giving rise to the plaintiff’s claim and states the remedies sought from the defendant, e.g.Damages. Where the defendant has no real defence and the plaintiff knows this,he can obtain summary judgment against the defendant. This means that judgment is given in favour of the plaintiff without allowing the defendant to fight the case to trial. The defendant must then satisfy the court that there are important questions or issues, which the court must try. b. Defence and Counter-claim. Assuming that the plaintiff does not succeed in obtaining summary judgment, the next step will be the delivery of the “Defence”. This is a document where the defendant must set out an answer to each of the plaintiff’s allegations contained in the statement of claim. All allegations which the defendant does not specifically admit are then in issue between the parties and must be proven by the plaintiff at the trial. If the defendant has a claim against the plaintiff relating to the same set of circumstances, his defence may be accompanied by a “Counter- Claim”. This will be heard at the same time as the plaintiff’s claim. c. Reply, Defence to Counter-Claim, Rejoinder, Surrejoinder. The plaintiff must reply to matters raised by the defendant in the “Defence”. At the same time he may also serve a “Defence to the Defendant’s Counter-Claim”. The “Rejoinder” is the defendant’s answer to the “Reply” by the plaintiff. The “Surrejoinder” is the answer by the plaintiff to the “Rejoinder” by the defendant. Sometimes more documents may follow if necessary. In practice, however, most pleadings do not go beyond the “Reply” stage. d. Request for Further and Better Particulars. Either the plaintiff or the defendant may request for further and better particulars at each stage of the proceedings. This will require the party so requested to provide further details, explanations of the allegations and any grounds upon which he or she is relying.
At the close of the pleadings there follows what is called an “Interlocutory Stage”. It is called as such because these proceedings are convened in between the pleadings and the trial. At this stage each party may submit a list of written questions relating to the dispute, which are called “Interrogatories”, for the other party to answer. Answers must be given on oath. These answers may help to sort out any matters and help in the presentation of evidence at the trial. Care should be taken in presenting accurate answers, as any inconsistencies between a party’s answers to interrogatories and answers given in court will be quite damaging to that party’s case. At this stage the court can also order “Discovery of Documents”. In this situation, both parties must prepare lists of documents, which are relevant to the dispute. This list is then incorporated in an “affidavit” which the party swears on oath. Thereafter the parties have the right to inspect documents in the possession of the other, prior to the actual trial. The interlocutory stage ends with the plaintiff taking out a “Summons for Directions”. At this stage, a judge sitting in chambers (i.e. private hearing, not in open court) will give directions with regard to the coming trial; for example, how many witnesses to call, how long the trial will take etc. The plaintiff will be given a hearing date. 76.5 The Trial The parties and their respective witnesses will assemble at the respective court for the trial. If a witness refuses to appear, a “subpoena” may be issued. This is a summons to appear and give evidence on condition that reasonable expenses are offered by the party calling for the witness. Those who ignore a subpoena are in contempt of court and may be punished by fine or imprisonment. The parties will be represented by their respective lawyers. The trial begins with the plaintiff’s lawyer opening his case. He outlines his client’s case and lays the issues in contention before the court. He will then call and examine the witnesses for the plaintiff. This is called the “Examination in Chief”. Documentary evidence, such as a letter, is not normally admissible and the writer must be called to give evidence on oath unless it is difficult or impossible to call him. Furthermore, the plaintiff’s lawyer cannot ask his own witnesses “leading questions”. These are questions that are phrased in such a way as to elicit the answer he wants the court to hear. The court also does not permit “hearsay evidence” to be admitted. These are evidence, usually orally given, when a witness tells the court that he reportedly heard someone else tell him something. After the examination in chief the defendant’s lawyer has the right to “cross examine” the plaintiff’s witnesses. The object of this exercise is to discredit their previous testimony. After this plaintiff’s lawyer may “re-examine” his own witnesses to clarify any earlier discrepancies or confusion highlighted during the cross-examination. The process is repeated for each witness. At the close of the plaintiff’s case, it is the turn of the defendant’s lawyer to open his case and produce evidence to refute what the plaintiff contends. In a civil trial it is important to note that the plaintiff does not have to prove his case “beyond a reasonable doubt”, as the prosecution in a criminal trial has to. All the plaintiff’s lawyer has to do is to show that what he alleges is more probably the correct version. This is called the “balance of probabilities”. The defense will then call its witnesses who will then be examined, cross-examined and re-examined. The defendant’s lawyer will then make his closing speech showing how in his view, the plaintiff’s case has failed. The plaintiff’s lawyer will then make his closing address. Both will they give an indication of what they think the remedies or compensation should be. After the closing speeches, the judge will consider the evidence before him and give his judgment. Usually the judgment is an oral one. If the losing party files an appeal, then the judgment must be written where he will state the grounds upon which his judgment is based. If a judge requires more time to consider the case, he may “reserve” judgment and give it at a later date. The judgment will also decide the remedies and compensation to be awarded. The end product of litigation is judgment. However the judgment would need to be enforced because a successful litigant is entitled to the fruits of his efforts. The fruits, however, can be quite illusive and may at times be “still-born” or rotten. Therefore when businesses encounter legal disputes, they should seek clear advice from their lawyers on the best course of action to adopt, whether it should be dealt with by litigation or other forms of dispute resolutions for example, mediation or arbitration. Of prime importance are the place it should be commenced and the enforceability of the judgment, order or award that would be obtained. The domicile of the parties and the probable location of the assets are also factors that must be considered before steps are taken. 8. Alternative Dispute Resolution (ADR) Parties, in civil matters can resolve their disputes using Litigation (resolving a dispute in Court). The advantages of using this method are: Forcing an unwilling party to reach a conclusion; The decision has binding force. The disadvantages of using litigation are: Timing consuming. It could take years to resolve a commercial dispute in Court; Expensive. Lawyers are very expensive individuals and the whole procedure is not cheap at all; The whole process is highly formal and the Judge is expecting both parties to know the court procedure; Adversarial procedure damages business relationship. If someone takes you to Court, in the majority of cases that ends the business relationship; Outcome in the hands of a third party (The Judge) who is only an expert in legal issues; Publicity. Court hearings are public and anyone is welcome to be present. In certain areas of law like “Family Law”, “Labour Law” and “Business Law” the use of litigation to resolve disputes is not effective enough. Apart from resolving a dispute by litigation through the courts system, the law provides other alternative means of settling disputes outside the court system as follows: a) Mediation b) Arbitration 8.1 Mediation Mediation is a voluntary process in which an impartial third party called a “mediator” assists parties involved in a dispute to resolve their differences in an amicable manner. Lawyers may represent the parties during the process. The object of the exercise is that the mediator will discuss the dispute in detail with each of the parties involved and advise them of his opinion on resolving it. The parties are not bound by his views and his role is merely to assist the parties understand the whole situation and help them reach a solution they are happy with. Once the parties have reached a settlement, the mediator will draw up the agreement as reached and this agreement is then enforceable at law. In Singapore, the flagship mediation arena is the Singapore Mediation Center (SMC). In all cases referred to SMC, it will appoint a suitable mediator acceptable to the disputing parties from its panel of experts. Mediation is especially useful when there is a continuing relationship between the parties and where the relationship is important to them. It is also suitable where there is room for collaboration and compromise among the parties. However, where disputing parties are not willing to settle the matter and insists on their strict legal rights and views, mediation would generally not be appropriate. 8.2 Arbitration Arbitration is the enquiry into and settlement of disputes other than in a court of law. The enquiry is conducted in quite a “formal” way and the award is made by one or more arbitrators, an umpire or a referee. Commercial contracts like shipping contracts, purchasing and procurement contracts, insurance contracts and building and civil engineering contracts frequently contains clauses requiring the parties to settle any dispute by arbitration before they proceed to litigation. If the dispute is settled by this means then the parties agree that the arbitrator’s decision is final and binding upon the parties. 8.2.1 Advantages and Disadvantages of Arbitration The following advantages can be gained by resolving the dispute through arbitration instead of through legal proceedings through the courts: a) Arbitration may be quicker and lead to an early settlement of the dispute. b) The arbitrator is appointed by the parties and he would normally be expected to have some expertise relevant to the matter in dispute. For example, an architect may be appointed to hear a building dispute. c) Arbitration proceedings are always conducted in private. This allows for disputes to be aired without becoming public knowledge thus preserving confidentiality, which is necessary for protecting business interests. d) Sometimes it can be said that arbitration may be less expensive than litigation. This advantage however depends on the relative speed the matter in dispute is settled by arbitration. On a day-to-day basis, arbitration may sometimes be more expensive as compared with litigation. On the other hand, the following disadvantages may be seen in utilizing this method of dispute resolution: a) The arbitrator does not have the power to make orders against third parties. Thus he cannot order witnesses who may have knowledge of the dispute to appear before him or order the production of documents held by third parties. If assets held in banks needs to be seized, the arbitrator cannot make such orders. b) The bringing up of issues, which would be of public interest, is prevented by arbitration, essentially because the proceedings are held in private. These issues could be important to the development of business law. c) Any misconduct on the part of the arbitrator during the proceedings will seriously undermine the reputation of arbitration for strict impartiality. In most situations, the public’s perception is that a judge’s decision is always preferable. 8.2.2 The Legal Effect of Arbitration In Singapore, arbitration is governed by an act of Parliament called the Arbitration Act Cap 16. As a general rule all arbitration awards in Singapore are final and binding on the parties. This means that the parties may not bring the matter, which has been arbitrated; to a court and the courts have no power to interfere with the award made by the arbitrator. Furthermore if the agreement contains an arbitration clause excluding even an appeal to a court, then such a clause will be given full effect. Under the Arbitration Act, it is provided that an arbitration award can be enforced in the same way as a judgment of a court if one of the parties applies to the court for the award to be conferred the status of a judgment of the court. In practical terms this means that a person in whose favor an arbitration award has been made has all the rights that a person who has obtained a court judgment has i.e. he can satisfy the award by seizing the goods, bank accounts or other property of the opposing party. 8.2.3 Venue of Arbitration In Singapore, the venue for arbitration proceedings is the Singapore International Arbitration Center (SIAC). This is a non-profit organization with all fees being received used to defray the costs and expenses of the center. Among the many services provided by the center are some of the following: a) Free information and advice on alternative dispute resolution i.e. mediation, negotiations, arbitration etc. b) Maintaining a panel of Accredited Arbitrators of local and international experts. c) Advice on the fees of arbitration and the provision of the physical facilities for the conduct of arbitration proceedings like meeting rooms, hearing rooms, and witnesses’ lounge and computer workstations.
1. Briefly describe some sources of law? 2. What is the most important type of law in a country? 3. Explain how the government can pass a law (the legislative system)? 4. How do judges decide cases (Case law)? 5. What other methods are there to resolve a legal dispute without having to go to court? 10. SAMPLES OF PREVIOUS EXAM QUESTIONS FROM LESSON 1: 1. Explain what is the Doctrine of Precedent and the legal rationale as to why this rather ancient doctrine is still followed by the judges in deciding cases? What happens when a case law decision conflicts with an Act of Parliament? Definition of precedent as Stare decisis whereby the lower courts are bound by decision of higher courts and sometimes the same court may be bound by its own previous decision – 5 marks Example – 10 marks When the case law authority conflicts with the Act of Parliament – the Act of Parliament will prevail – 10 marks with explanation as to why 2. Briefly explain the various sources of law and if there is a conflict between any of these sources which will prevail and why? Candidates are to show their understanding of the various sources of law and how the law is derived. The sources of law include – constitution, legislation, subsidiary legislation, traditions, general principles, case law. To some degree better candidates may also mention the constitution of the country. When there is a conflict between the common law [ case laws] and a statute as a rule the statute will prevail as they are written law and is instituted by the government. However the statute must not conflict with the constitution which is the highest source of law. Candidate need to elaborate on each of the above. 3. Explain the principle of Stare Decisis and the rationale as to why this rather ancient concept is still relevant in a modern judicial system. Definition of Stare Decisis – as a situation whereby the lower court are bound by the decision of the higher court and sometimes the same court may be bound by its own previous decision in order to maintain a certain level of uniformity in the law. This is to achieve consistency and certainty in the law. Candidate need to elaborate on this further. 4. Briefly explain the various sources of law and if there is a conflict between any of these sources which will prevail and why? Candidates are to show their understanding of the various sources of law and how the law is derived. The sources of law include – customs, case laws, equity and statutes. To some degree better candidates may also mention the constitution of the country. When there is a conflict between the common law [customs and case laws] and a statute as a rule the statute will prevail as they are written law and is instituted by the government. However the statute must not conflict with the constitution which is the highest source of law. Candidate need to elaborate on each of the above. 1 The Greek philosopher Aristotle (384-322 BC) stated in his book “The politics” that the rule of law was preferable to the rule of any individual. Another Greek philosopher: Socrates (470-399 BC), died because of his fidelity to the rule of law (Socrates was accused, tried and convicted by the Grand Jury of Athens for corrupting youth with his teachings and being disrespectful to the Gods which were supposed to protect Athens. Despite the possibility of escape, Socrates chose to accept the verdict of death which had been imposed upon him, in order to demonstrate his fidelity to law; he was giving up his own life in favor of the supremacy of law). In the Middle Age the rule of law was understood by the Christians as God-given, communicated to man by Revelation, and without the possibility of changing it (European Kings were in power because that was the will of God). Later on, an English philosopher: John Locke (1632-1709) came to the conclusion that all men, including kings, were equal by birth. He added that to protect our basic rights (property, liberty) we needed to create a powerful institution (the State-law). The formation of the State-law by the society was done through a hypothetical contract (the social contract theory).Finally, according to liberalism, the rule of law is a very important constitutional principle but taking under consideration that a minimum of interference of the law is required to fulfill the expectations of the individuals. To the contrary, Marxists think the law must not be neutral, and the State has to be present to avoid the economical exploitation of the individuals. It is the State, in the socialist system, the institution which gives rights and obligations to the individuals. 22. According to the civil law tradition, a physical person needed to fulfil the following requirements: To be born alive; To have human appearance; To live for 24 hours after the separation from the mother. (Article 30 Spanish Civil Code: Since 2011 the only requirement to have the status of being a physical person is to be born alive fully separated from the mother). A legal person (company) has to be created with a document containing all important aspects which must be signed by a Public Notary. After that, the new company must be registered according to the legislation of a particular State. 3 Particular Sources of law in the common law legal system The sources of the common law legal system are: A. Court Decisions B. Statutes and treaties. Statutes and treaties are the other source of law in the anglo-saxon world. However to be enforced even statutes and treaties must be ultimately interpreted by judges. Statutes are however controlling; that is a statutory law can replace the customary (common) law. In the hierarchy of norms, the statute is the 'highest' norm, then treaties (a formal agreement between two or more states in reference to peace, alliance, commerce, or other international relations). Particular Sources of law in the civil law legal system The particular sources of law, according to the civil legal system (Uzbekistan, Spain, France, Germany, and the Russian Federation etc) are: The law (usually created in Parliaments). The traditions. The General principles which apply to the particular country. Traditions will be sources of law only: When there is not a law applicable. When the tradition is not against moral principles. When it has been proved the existence of the tradition. An example of tradition in Uzbekistan is: “the youngest son inherits the house and has to take care of the parents”. An example of tradition in Spain is: “when the market traders shake hands, there is a contractual relation between the parties”. The general principles which apply to the particular country are sources of law only when there is no law or traditions applicable to the particular case. The Judge must refer to “General Principles” as last resource to resolve a case (equality between men and women, rejection of domestic violence…etc). Judicial decisions are not classified as sources of law in the civil law legal system. Judges are supposed to interpret the law, traditions and general principles and they have to resolve all the cases according to the established sources of law.
The sources of Islamic law are: Koran: The holy book reveling the universal laws or laws of nature. Koran is the gospel of Allah. Koran is the literal and final word of God revealed through his Prophet Muhammad (PBUH). Hadith: They are the second source of Sharia (Islamic law or the law of God). They are the collected deeds and sayings of the Prophet Muhammad (PBUH) and his earliest followers (in Arabic, hadith means “sayings” or traditional reports). Sunnahs are compilations of hadiths. Fikh: It is the Islamic jurisprudence. It is through fikh that Islam demonstrates how it covers all aspects of life, by including those things which in the West would be considered private and beyond the scope of the legal system (for example the style of dress). Kiyas: where legislation is required for social problems not dealt with in sufficient detail in either the Koran or Hadith, Muslim rulers and law makers must use analogy (kiyas) to frame legislation or new religious doctrines. This arises when situations with The Prophet Muhammad (PBUH) or the Koran cannot have foreseen arrive and therefore cannot be dealt with either the Koran or Hadith (for example, the Koran specifically prohibits the consumption of wine, but does not mention any other alcoholic drinks. By using Kiyas, Muslim jurist have extended the prohibition to other alcoholic drinks which cropped up later, such as whisky or vodka). Download 57,02 Kb. Do'stlaringiz bilan baham:
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