Abstract
There are four main legal traditions in the world. They include Common, civil, socialist, and Islamic legal tradition. These legal traditions originated from different countries long time ago and they all had a common goal; to serve as a method of social control. This paper observes the history of these legal traditions and proves how international and comparative criminal justice will help students become better practitioners and scholars.
Romans originally devised civil law as a legal system. Historically, roman history can be divided into three periods. These include; monarchical period, republican period and imperial period. These periods took a total of 244 years, 478 years and 507 years respectively. These years can be traced from 753 BC to 476 AD. It was during the republican period that the greatness and development of Rome was highly remarkable. This was preceded by monarchial period, which was seen as a period of infancy. After republican period, there came imperial period, where the decay as well as downfall of Romans was witnessed.
During the monarchial period, there were seven great kings who originated from three races; Sabine, Etrurian and Latin. Among these seven, two distinct kings contributed a lot in law giving. These were Numa – the second king – and Servius Tullius –the sixth king. It was during this period that civil polity of Rome’s organization was crystallized into a form, which was retained permanently. (http://www.historyoflaw.info/history-of-civil-law-in-rome.html )
Numa formulated the city’s institution while it was at its infant state while Servius Tallius shaped them. During the early Rome’s days, there existed two distinct classes of people; patricians –who were the first to settle in Rome and the plebeians-who comprised of subsequent accessions. Patricians were more privileged and claimed many rights that favored them. They regarded themselves as free men who were always determined to control Rome state. (http://www.runet.edu/~junnever/law/commonlaw.htm )
King Servius Tallius however, enlarged plebeians power and increased there voice in the states government than they previously had. There were also several assemblies, which included comitia Curiata, Comitia Cunturata and Comitia Tributa. Comitia Curiata was composed of patricians. This was regarded as original Roman assembly. In his effort to protect plebeians and their political rights, Servius Tullius established comitia centurita. It eventually emerged to be ‘the true general assembly of the Roman people’. Its duties included leges (law) enactment, electing the states great officers, praetors as well as consuls. It also provided final jurisdiction in capital criminal cases. All powers were vested on it. This was the origin of civil law.
Common law originated from England’s inquisitorial systems. This was as a result of judicial decisions that were collective in nature based on culture and precedents. Common law is a case based and highly depends on reason. It is usually used in civil cases involving torts.( http://www.historyoflaw.info/history-of-civil-law-in-rome.html ) Common law was institutionalized by Henry the second in the year 1154. He harmonized the legal systems to bind all the people in the country. This involved incorporation of legal customs and elevating them to national level. (Sampson W, 2006, pp.1-20)
He usually ordered judges to hear cases all over the country and pass their verdict as a way of resolving conflicts in the country. The judges were however guided by customs. These judges met often to share their experiences in executing their roles and more important, they discussed and recorded the decisions they made while undertaking their duties. This was important since it acted as a future reference for making decisions if any similar case arises. This eventually created a legal system, which was common to the country at large, and this led to emergence of the common law. (Sampson W. 2006, pp.1-20)
Socialist law is mainly used in states that practice socialism. In such states majority of the nations property was government owned. The rest was owned by cooperatives. These laws were highly based on Marxist ideologies that criticized capitalism and advocated for a command economy. According to Marx, informal tribunals were important to facilitate revolutionary justice where the state law would play a significant role in coercion. This was the only way in which proletarian justice would be achieved and the bourgeois brutality and exploitation could be curtailed. As a result, there was need to formulate laws that would prevent any form of opposition from those who advocated for capitalism. This was for instance witnessed when Stalin deployed security police to administer justice in the soviet state. (http://www.runet.edu/~junnever/law/commonlaw.htm )
Islamic law can be traced back in 767 when Mohammed ibn idris ash-shafii introduced its basic principles in Yemen. This was put down in the book he wrote, ar-Risalah. In this book, there exist Quran, ijma, giyas and Sunnah that are the basic sources of sharia laws. Sharia or the Islamic law is therefore based on both the quran as well as the Sunnah. During its formation, people were bond together by ties that were strengthened by their nomadic culture or their tribes. They were however brought together by Islam, which was by then, a way of life. Since Mohammad’s death, sharia has continued to undergo many changes. (Wael B. 2005, pp.1-28)
It should be noted that all these legal traditions share so much in common and every good practitioner or legal student should actually understand them. They all have the same objective and most of them originated because of similar circumstances. Civil law, for instance, originated from Rome. Common law is also associated with Romans. Civil law has for many years been considered as the basis that led to emergence of socialist law. Some civil legal institutions have originated from Islamic law. Islamic law and the socialist law were also generalized to apply to all the citizens of theocratic state and socialized states in which they were used. This means that such laws were reduced to common law as time passed by. (http://www.columbia.edu/cu/asiaweb/v11n2Carlos.htm ; http://www.historyoflaw.info/history-of-civil-law-in-rome.html )
It is very important to understand the legal structures of different states since most states have different laws depending on their constitution. This will enable them to ensure that justice prevails. Every person‘s rights must be safeguarded without infringing any other person’s rights. It is therefore important for practitioners and scholars to study and practice legal and criminal justice with an international insight. Injustice is endangered if scholars and legal practitioners become ignorant of all the above-mentioned legal traditions. People keep on migrating from one region to another. As a result, they encounter different legal traditions. This may even result to what sociologists call culture shock. For the concerned state to address matters concerning a crime committed by such an individual there is a need to consult international laws. Justice is also achieved when different legal frameworks are compared since the applicable laws that seem to address a crime successfully can be borrowed.
References
Cotterrell R, The Politics of Jurisprudence. [Retrieved] 1st August, 2008, [From] http://www.runet.edu/~junnever/law/commonlaw.htm
History of civil law in Rome. [Retrieved] 1st August, 2008, [From] http://www.historyoflaw.info/history-of-civil-law-in-rome.html
Carlos Wing-Hung Lo, 19980, Volume 11, Number 2, Spring, Socialist Legal Theory in Deng Xiao-Ping’s China [Retrieved] 1st August, 2008, [From] http://www.columbia.edu/cu/asiaweb/v11n2Carlos.htm
Wael B. (2005). The Origins and Evolution of Islamic Law, Cambridge University Press
Sampson W. (2006). An Anniversary Discourse, [Retrieved] 1st August, 2008, [From] http://books.google.co.ke/books?id=qrwrg7F3VHEC&dq=origin+of+common+LAW&source=gbs_summary_s&cad=0
