5.1 Overview of International and Foreign Legal Systems

International and foreign legal systems form a complex web of rules and structures. Common law and civil law systems differ in their reliance on precedent versus codified statutes. Understanding these differences is crucial for effective cross-jurisdictional research.

The United Nations plays a key role in developing international law, while regional organizations create complementary frameworks. Navigating the hierarchies of legal sources and overcoming language barriers are essential skills for researchers in this field.

Common Law vs Civil Law

Key Differences in Legal Principles

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• Common law systems are based on judicial precedent and case law, while civil law systems rely primarily on codified statutes and legal codes
• In common law systems, judges have more flexibility to interpret the law and create binding precedent through their decisions (U.S., U.K.)
• Civil law judges are typically more constrained by the strict application of codified law (France, Germany)
• The doctrine of stare decisis, which requires courts to follow precedent set by higher courts, is a fundamental principle in common law systems but plays a less significant role in civil law systems

Procedural and Structural Differences

• Common law systems use the adversarial model, where lawyers present arguments before a neutral judge or jury
• Civil law systems employ the inquisitorial model, where judges take an active role in investigating and questioning parties
• The role of juries differs between the two systems
  • In common law, juries are often used in both civil and criminal trials
  • In civil law, juries are less common and may only be used in specific cases, such as criminal trials

International Law Enforcement

Role of the United Nations

• The United Nations (UN) is the primary international organization responsible for developing and codifying international law through various bodies
  • General Assembly
  • Security Council
  • International Law Commission
• The International Court of Justice (ICJ), the principal judicial organ of the UN, adjudicates disputes between states and provides advisory opinions on legal matters referred to it by authorized UN organs and specialized agencies

Regional Organizations and Treaties

• Regional organizations create and enforce regional legal frameworks that complement and sometimes supersede international law
  • European Union (EU)
  • African Union (AU)
  • Organization of American States (OAS)
• International treaties and conventions create binding legal obligations for ratifying states
  • Geneva Conventions
  • United Nations Convention on the Law of the Sea (UNCLOS)

Specialized International Organizations

• International organizations have specific mandates to enforce international law within their respective domains
  • World Trade Organization (WTO) handles trade disputes
  • International Criminal Court (ICC) prosecutes international crimes

Legal Source Hierarchy

International Law Hierarchy

• Primary sources in international law
  • International treaties
  • Customary international law
  • General principles of law recognized by civilized nations
• Subsidiary sources include judicial decisions and scholarly writings

European Union Legal Hierarchy

• Primary law (treaties)
• Secondary law (regulations, directives, and decisions)
• Supplementary law
  • Case law from the Court of Justice of the European Union
  • International agreements

Civil Law and Common Law Hierarchies

• Civil law hierarchy
  • Constitution
  • Codes and statutes
  • Regulations
  • Customary law
  • Case law may be persuasive but not binding
• Common law hierarchy
  • Constitutional law
  • Statutory law
  • Case law (judicial precedent)
  • Subordinate legislation (administrative regulations)

Islamic Law Hierarchy

• Primary sources
  • Quran
  • Sunnah (teachings and practices of the Prophet Muhammad)
• Secondary sources
  • Ijma (consensus of Islamic scholars)
  • Qiyas (analogical reasoning)
• Sources are interpreted and applied by Islamic jurists

Cross-Jurisdictional Research Challenges

Language and Terminology Barriers

• Legal materials may be written in various languages, requiring translation or specialized language skills
• Differences in legal terminology and concepts across jurisdictions can lead to misinterpretations or confusion when conducting comparative legal research

Accessing and Navigating Foreign Legal Resources

• Differences in database structures, search interfaces, and access restrictions may complicate research
• Understanding the cultural, historical, and political contexts that shape legal systems is crucial for accurately interpreting and applying foreign legal materials

Staying Current and Collaborating with Experts

• Keeping up with changes in foreign legal systems, such as amendments to legislation or landmark court decisions, requires ongoing monitoring and updating of research strategies
• Collaborating with local legal experts or utilizing specialized research services may be necessary to effectively conduct legal research in unfamiliar jurisdictions