According to Reichel, “today legal scholars identify three or four legal traditions (some call them legal families)”. (Reichel, n.d., p.76) They are the following: Common, Islamic, and Eastern Asia traditions. Among the countries, which represent them we can find U.A.E., China, England. Common legal traditions are represented in England. China can be named the representative of the legal traditions of East Asia. Islamic legal traditions can be observed in the UAE. The above mentioned countries are the leading ones in representing legal traditions.
First, we need to define the term – legal tradition. According to Tetley, we can define a legal tradition not only as a set of rules of law about contracts, corporations, and crimes, but as something deeper, involving sense a reflection of that tradition.”(Tetley, 2000, p. 682) In other words, it is a set of deep-seated, traditionally determined notions of the nature of law, the role of law in society and the state, the legal system proper functioning and organization, and how law is or should be studied, formed, enhanced, applied and taught. Thus, legal systems are connected to countries’ cultures through different legal traditions, which we are going to observe further in the text.
Common law appeared in England in the 11th century as the legal tradition. The common law principles play a great role in reported judgments of the higher courts, the reasons for that can be special fact situations that may appear during court disputes. (Tetley, 2000, p.684) Common law is the basis of private law in the following countries: UK, US but only in 49 states and in some Canadian provinces as all of them were earlier British colonies. In addition to the above mentioned countries, the following states of US and other countries have transformed their legal systems into common law systems – the Panama Canal Zone, Arizona, Guyana, California, Florida, Texas and other former Spanish possessions, New Mexico. Justice is an important feature of common law. In England, there has long been a practice of direct appeal to the king or his chief legal administrator, The Lord Chancellor.
The legal tradition of East Asia combines a unique combination of influences, both religious and secular. Japan was the first country to modernize its legal system by combining the greatest part of German Civil code with the French one. Talking about China, during the Qing dynasty there was the Westernization process of traditional Chinese law. The new private law codes have appeared founded on transferred German-Japanese law systems. Today Taiwanese law retains the closest relationship to the codifications from that period. The reason for it was the split into nationalist system of Chiang Kai-shek and communist system of Mao Zedong. Soviet socialist law heavily influences nowadays-legal infrastructure of the Chinese law system. Administrative law works to the detriment of private law rights. However, today, thanks to the process of rapid industrialization, China is carrying out reforms in the field of economic rights. The new Treaty code of 1999 was a departure from administrative law and finally in 2001 China entered the WTO.
The definition of law in Islam varies from other legal systems. It is not perceived positively in comparison with the law in other countries. Although many predominantly Muslim countries have adopted positive laws modelled on European civil law systems, Islamic Jurisprudence continues to regulate legislation in areas such as marriage, divorce, child custody and inheritance. Questions concerning trafficking of humans and drugs are included into the law. Therefore, different countries should have a clear view on details of their legal traditions. According to United Nations, Islamic law has a divine basis that makes it different from common and civil law systems. (The office of the United Nations office on drugs and crime, 2010, p. 11). Therefore, civil law system can be observed as the “derivative” from judicial decisions in legal systems of UK and US that makes it different from Islamic law. Rather, Islamic law is characterized by divine nature. Islam is an Arabic word that means ‘submission’ or ‘submission to the will of God.’ The law of Muslims can be named differently, but the most commonly used one is Sharia that is equivalent to the ways of leading people. There are four main sources of Sharia, which are being discussed further.
The first source we are going to talk about is the holy book of Islam – the Koran. According to UN, the Koran, was written by the Prophet Muhammad as a exhortation to possess adequate human behavior and establish social relations. (United Nations Office on Drugs and Crime, 2010) As such, the laws of the Quran regulate religious duties as well as legal relations, or legal transactions. Islamic law distinguishes between ibadat (“committed obligations”) and Muamalat (‘legal relations’). Ibadat includes the five pillars of Islam, or religious obligations, while Muamalat includes Family law (divorce, marriage, child custody, wills and inheritance), torts, property law and contracts; the crimes and punishments law; and the war and peace law. Among more then 6236 verses of Quran at least 500 consist of legal rules on different aspects of law: criminal law, common law, family law, inheritance law, etc. As stated in the Quran, 5: 48: ‘we made for you a law, so follow it.’ The second source of Islamic law is hadith (also called Sunnah), where the acts and words of the prophet Muhammad which were collected by his followers after his death are presented. The authority of the Sunnah, also known as the traditions of the Prophet, stems from the prophecy of Muhammad proclaimed in the Quran, 4:59: “whoever you believe, you should obey God and his messenger.” As we see, the Sunnah gives us the explanation of Koran’s General precepts and provisions. Commonly, we can distinguish between two types of Sunnah – Sunnah by words and Sunnah by deeds. The ijma, or consensus of Islamic scholars, is the third source of Islamic law. The consent of Muslim lawyers or the Muslim community is the rule of law. The fourth main base of Islamic law consists of Qiyas, that can be described as the base for establishing new precedents made by the divine texts. To apply qiyas, there must be four elements: asl or original subject; far, or a new subject; illah, or a common cause in both; and imaging hukm, or a rule derived from qiyas.
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