Laws are made and classified in a number of ways. Do you agree with this statement?
This paper is an inquiry into the manifold classification of laws, as it exists within the world today. The author would like to adopt a hierarchical approach in an attempt to seek and explain the ways in which laws are classified. At the top of this hierarchy then, we see International law and Domestic Law. International Law can be defined as a set of rules and laws that govern the International community with member states as individuals being bound by a set of rules and regulations which bind them to their undertakings with each other and their obligation to maintain peaceful ties with their fellow global actors. While there is no set code of International criminal law there is an overall tendency on behalf of neighbouring states and international organisations to draw up charters forbidding human trafficking and the use of force against other nations.
It is also worth observing that post the liberalization era of the nineties there was an increased subscription towards bilateral and multilateral treaties giving effect to commercial and economic arrangements between countries. The regulation and the enforcement of these is also a function of International law. For the same reason, the laws governing private international law are more concerned with commercial and legal undertakings between individuals and states in terms of their domicile and the question of which jurisdiction’s laws would apply if they are alleged to have committed crimes, or are a victim of a criminal or civil breach of law themselves, in another jurisdiction.
Public International Law would, on the other hand, compel a country through the agreed processes of International Legal Tribunals or even through diplomatic efforts the need for honouring their commitments to the International community. The public/private law classification is also utilized within the premise of laws at the national level. This is basically in the context of the civil/criminal classification of laws as discussed later in the essay. Public law would denote those laws that encompass the substance and procedure upon which the state through the parliament imposes its administrative and political will and mandate.
After the Second World War there was also a tendency amongst the relatively powerful states to move towards the creation of economic regional blocs like the NAFTA, the GATT, the G8 and the ASEAN forums. More recently the four-decade-old European Bloc, the European Union (EU) has now emerged as a powerful combination of affluent European States going beyond simple economic co-operation in the decades since its creation during which it has expanded greatly. The laws regulating this community have acquired significant importance in the recent years due to the desire of other trading nations to deal with the EU in the matters of Commercial and Military Co-operation. While there have been powerful economic blocs in the past with in Europe and the Middle East, the EU’s significance now rivals that of the United States. Interestingly enough, however, the EU is not a federation like the USA. This means that the laws of the EU bind the member states by imposing laws and regulations, which bind its signatory member states in terms of their domestic policy – which means European law ‘trumps’ national law, something many are unhappy with. However, all the member nations maintain their unique identities as “states” and are free to contract and sign treaties with other member states subject to their commitments as members of the EU.
Another interesting issue worth mentioning is that EU law has to a large extent merged into and dictated the political will of these countries. In the UK, in particular, there have been a large number of legislative changes following the so-called EU directives. These regulations, which are passed by parliament, always have a direct effect upon the courts thereby mandating their supremacy over their domestic laws. Usually, the British government incorporates EU laws into its own laws, thereby avoiding conflict (e.g. the Equality Act). This occurrence has to a large extent posed a dilemma for the ‘doctrine of supremacy’, which is supposed to be enshrined into the traditions of the UK constitutional law.
When we move further down from the concept of the comity of nations towards the grassroots level, it is possible to note that every nation or state will have a constitution and a parliament. This constitution – (unwritten and based on tradition in the UK’s case) – will dictate how and what type of laws is promulgated for the citizens of the nation in terms of their obligations towards the state each other. The citizens are regulated by the Administrative and Criminal law to ensure that they do not do anything that would cause anarchy in the country. This would include violence, terrorism, theft, criminal damage and homicide. However, there is also another breed of laws that actually regulate on a more horizontal level the arrangements between individuals/citizens of the State. These encompass a wide variety of commercial, family and civil laws.
Last but not least, it is worth mentioning here that there is yet another classification of law which can be labelled as Civil and Common law. Common legal systems are those legal systems, which run in the United Kingdom and to some extent in former colonies like Canada, India and Australia.
The English legal system has thus had a significant impact upon the law and constitution of jurisdictions of very many former colonial countries that still follow the same style and tenure of regulation. The other limb of this classification (i.e. civil law) is the system of “coded law” followed by jurisdictions like France and Germany. Common law is a creature of the juxtaposed autocratic and subsequently democratic origins of British legal tradition; hence it relies heavily for its mode and manner upon “binding precedent” or former case law decisions. Basically this means that if two cases are alike the outcome and manner of adjudication of a third similar case by the judge will be the same. Thus UK law has developed on the basis of the “like cases should be decided alike” (stare decisis) principle, This does not mean that parliament-made law is not applied in conjunction with these cases, as according to the doctrine of supremacy, parliamentary will dictate the ultimate outcome of legal disputes through judicial interpretation. Civil law, in contrast to the above, relies solely upon the parliamentary code or will imposed upon the citizens through statutes, and there is little or no room left here for statutory interpretation or judicial activism, as has been the bulwark of English legal tradition for centuries now.
In conclusion, this essay has been an exercise in exploring the various dimensions through which laws can be classified domestically and internationally. The author agrees that there cannot be just one way of classifying laws, and it remains a multifaceted paradigm.
The following texts were consulted for this paper:
- Bailey, SH et al. (2002) Smith, Bailey & Gunn on the Modern English Legal System, 4th edn, London: Sweet & Maxwell
- Salter and Moodie (2000) Exploring the Law: The Dynamics of Precedent and Statutory Interpretation, 2nd edn, London: Sweet & Maxwell
- G and Kelly, D (2009) The English Legal System, 9th edn, Abingdon: Routledge-Cavendish