The Major Legal Traditions of the World

A.W.B. Simpson, An Invitation to Law (Basil Blackwell, 1988), pp. 53-82

Legal Systems and Legal Traditions

An example of a successful society which for long periods did not attach central importance to legal forms and processes is Imperial China, where, at one time when anti-legalism was at its height, recourse to law was thought so disgusting that both plaintiff and defendant in an action were soundly beaten before the case was heard to discourage such lamentable conduct in the future.

Systems of legal thought, often called Legal Traditions, can be divided into groups or families. Example is religious systems such as Hindu or Islam law. They are not conterminous (equal) with the boundaries of nation states. Europe produced only two radically distinct professionalized legal traditions which have spread over much of the globe;

Roman Law Tradition (Civil Law Tradition): once concerned with the affairs of Roman citizens (Latin cives and hence civil)

Common Law Tradition: Had its root in the pre-conquest world of Anglo-Saxon England.

A Legal Tradition is an aspect of general culture, and needs to be distinguished from a national Legal System which is the body of rules in operation in a particular society at a given time, together with the institutions that go with them. Examples are personal laws of people, customary law of places. Since a Legal System is a cultural phenomenon, the conception of a family of legal systems, or legal tradition, involves grouping together particular legal systems which make use of the same basic ideas and share some degree of cultural homogeneity. Legal Systems may be grouped into families according to the tradition to which they belong. Examples are Australia, Canada, USA, Ghana, Nigeria, Hong Kong, India and New Zealand legal systems belong to the common law tradition, whilst the Italy, Greece and West Germany legal systems belong to the civil law tradition. Thus, where an English man moves outside his tradition (From Canada to France) will, as a lawyer, be quite radically lost and disoriented even if his command over the French language is perfect. The survival of the common law is found in the fact that decisions of the English courts are still treated as an important source of law.

The Civil Law Tradition

Rome was founded in 753 BC and its government was originally monarchical and was governed by The Twelve Tablets of 451-450 BC, which were the secret prerogative of the priests. Monarchy was followed by a Republic and then by an Empire, the Roman Empire which lasted for a very long time and disappeared after the fall of Byzantium (Constantinople, Istanbul) to the Ottoman Turks in 1453. Around 280 AD, Roman Civilization developed an elaborate body of private laws (dealt with the relationship between citizens but not states). These laws were developed only by Jurists, who acted not as judges or lawyers but as legal consultants and wrote books for prestige but not money. Their works was what was developed as the codification of law in the 6th Century by Emperor Justinian of Byzantium as the Corpus Iuris Civilis, translated as The Compendium of Civil Law. This was completed by 534 AD as a compendium of juristic law. Employing the modes of thought derived from the civil law churchmen developed the law of the Western Church, which is called Cannon Law, and this applied through the whole of Christendom to matters which fell in the church’s jurisdiction, example is the institution of marriage.

The Common Law Tradition

Unlike the civil law tradition, it did not take its origin from a text of any kind, but from tradition expressed in action. It began as customary law used in the court if the King in disputes concerning the monarch directly which included graver crimes called Pleas of the Crown as well as disputes involving the king’s immediate feudal tenants. Norman feudalism was a military system, with Feudal Courts, Special courts and Church courts to deal with spiritual matters, all in England. The Royal Courts means not a building but the royal entourage included cooks, chaplains, carvers and clerks or clerics who were churchmen who were literate. They had royal authority and were substitutes for the king, if you killed a HC judge when acting as judge that was treason. The clerks had power to judge over litigations. In particular they used writs, formal documents issued in the king’s name, to start actions. Their practices which were preserved as an oral tradition formed the common law of England. Under Henry II, one of these clerks wrote a book about these practices titled, Glanvill’s Treatise on the Law and Custom of England. Over the following centuries, critical developments extended the scope of the common law system. It became available everywhere and not simply where the travelling king’s court happened to be at a particular time through the sending of judges around the country, thus extension of royal justice. There were developments of large range of tribunals. Until the 19th century, only a dozen professional common law judges, known as the twelve men of scarlet, but this number in recent times has risen sharply. The character of the system changed in two critical ways. 1. Secularization, where the common law separated from the church. Originally, the legal experts were in church orders but lawyers evolved who were appointed as judges and organized themselves in the fraternity houses in London called Inns of Court. 2. Judges instead of confining themselves to regulating the procedures whereby cases were handled began to exercise control over the substance of how case were determined. This was brought about through the elaboration on special pleading (example the man died naturally. Designed to determine precisely what the dispute was all about before the submitted to the jury for determination). Pleading can be general (example I am not guilty or guilty. Does not narrow down what the dispute is about). This special pleading differentiated questions of fact (for jury to decide - lay common sense) from questions of law (for the judge to decide – expert opinion). The Central Characteristics of the common law include: 1. whereas the foundation for the law to a civil lawyer is a text, to a common lawyer it is a case. Concerns not so much in what the statute says, but in what courts have or may make of it. The law is seen as starting from decisions in tricky cases, as the law consists of principles according to which cases have and ought to be determined. The law evolved practically in courts, in response to immediate problems, not theoretically, away from the scene of action, unlike the universities as in the civil law. The common law is court-centered. The historical character of the law is commitment to tradition, thus the doctrine of precedent, where decisions in past cases should govern present cases which exhibit no relevant differences from them, unless the result looks quite absurd, thus giving stability to the law. Example is the case of DIRECTOR OF PUBLIC PROSECUTION v SMITH where there was a remark “My Lords, I can see no difference between a dog and a cat”. Lower courts must accept and follow precedents set by higher courts. The problem is that as the world changes, so should the law change with respect to beliefs and attitudes. 2. There is division between law on one hand and equity on the other hand unlike the civil where there is no distinction. Thus there is operation through general rules, yet it must be prepared to make exceptions to general rules when slavish conformity to them would produce an unjust or indefensible result.

This was reacted to by the common law through its creation, alongside the Common Law Courts of Common Pleas, King’s Bench and Exchequer, which all administered common law, an entirely different court, the Court of Chancery, which administered not law but equity. Individuals who for one reason or another did not think that the system was providing them justice, was to petition the king, as fountain of justice, setting out their complaints in writing to the Lord Chancellor who had royal authority to make orders know as decrees providing remedies when the common law did not do so. 3. The common law courts did not recognize what we would call trusts but dealt with legal rights. Chancellors apparently developed the idea that they are not administering law of any kind; instead they claimed to be administering conscience, that legal rights should be exercised in accordance with good conscience. Their courts were called the Court of Conscience in the 15th century, later Court of Equity. As Aristotle in Nichomachean Ethics said that “law is inevitably imperfect because it is impossible ever to formulate a general rule which will satisfactorily cope with all the circumstances, so we need the power, not itself governed by any rule, to depart from the rule, and this power is called equity”. Equity prevailed over the law, and this rule is now statutory. Equity fulfills the law. The institutional distinction between law and equity was abolished in England in 1876; all courts now administer law and equity. The maxims of Equity includes, ‘he who comes to equity must have clean hands’, ‘equity is equality’, ‘equity does nothing in vain’, and ‘equity regards the substance and not the form’. Since common law is the law of the courts, developed by judges (judge-made law) in them, it is opposed to law laid down in statutory form by parliament. Purists point out that the traditional name for English law is Lex et Consuetudines Anglie, the law and customs of England, not the common law at all. Roman law can be called the common law of Europe, ius commune.

Concepts and expressions in the supplied note that need fuller explanation

Legal tradition; legal system; sources of law (including the precise list in Ghana's Constitution and how they interact); 'common law' (received English law) vs 'civil law' (Roman law tradition) — including codification; customary law and personal law; doctrine of precedent and stare decisis (ratio decidendi and obiter dicta); the position of equity and the merger of law and equity; reception and continued role of English decisions and statutes in Ghana; subsidiary legislation and rules of court; the hierarchy and binding effect of judicial decisions in Ghana (Supreme Court, Court of Appeal, High Court and lower courts); the meaning and operation of 'existing law' and 'common law' under Article 11; the treatment of international treaties and their domestic effect; distinction between legal tradition (cultural) and legal system (institutions and rules); and key procedural concepts mentioned (writs, pleading, special pleading) which require modern clarification in Ghanaian context.

Definition — Legal tradition and Legal system

Legal tradition: a broad family of legal thought and institutions that share historical origins, characteristic sources, modes of reasoning and institutional forms (for example, 'civil law' and 'common law' traditions). It is a cultural category used for comparison and does not by itself determine the precise content of a country’s law. Legal system: the set of legally operative rules, institutions (courts, legislature, tribunals), procedures and recognized sources of law operating in a particular polity at a given time. A single legal tradition can contain many different legal systems (e.g. civil-law systems of Italy and Germany differ in detail).

Sources of law in Ghana — scope and interaction

Article 11 of the 1992 Constitution enumerates the sources of law in Ghana. These operate together according to a normative hierarchy: the Constitution is supreme; Acts of Parliament and subsidiary legislation derive authority subject to the Constitution; 'existing law' and the received common law operate where not displaced by the Constitution or statute; customary law applies subject to the Constitution and any contrary statute. In practice, courts identify the applicable source for the issue before them and resolve conflicts by reference to the constitutional hierarchy and express statutory direction (for example, where Parliament enacts a law inconsistent with a custom, the statute prevails).

Scope and key expressions requiring precision: (a) 'Existing law'—this phrase in Ghanaic usage generally denotes law in force immediately before the coming into force of a new constitutional order (statutes, decrees, subordinate instruments and certain colonial enactments received into local law), but it is subject to amendment or repeal by Parliament. (b) 'Common law' in Article 11(2) includes the rules known as the doctrine of equity and customary law as determined by the Superior Courts; Ghana’s 'common law' is therefore a blended category incorporating received English common law principles unless displaced. (c) 'Customary law'—this means the customary rules and practices of a particular community (family, ethnic group, chieftaincy) where recognised by the courts, but customs that are repugnant to natural justice, equity, good conscience or inconsistent with any written law do not apply.

Doctrine of precedent — structure and operation in Ghana

Ghana adopts a hierarchical approach to precedent. The Supreme Court is the final court of appeal and its decisions on questions of law bind all lower courts. The Supreme Court treats its own previous decisions as 'normally binding' but may depart from them when it 'appears to it right to do so.' The Court of Appeal is bound by its own previous decisions subject to any constitutional provision allowing otherwise; lower courts follow superior courts. Practically, judges determine whether an earlier decision is binding by identifying whether the issue is a question of law and whether the earlier ratio applies to the present facts.

Ratio decidendi and obiter dicta: A clear rule is needed for students. Ratio decidendi is the legal principle or reasoning necessary to reach the decision (binding as precedent where the facts are sufficiently similar). Obiter dicta are remarks or illustrations not essential to the outcome and are persuasive but not binding. Identifying ratio requires careful analysis of the judgment’s reasoning — what point of law was decisive — and separating that from ancillary commentary.

Illustration: If the Supreme Court decides a negligence case on the basis that duty of care existed because the defendant ran an unguarded manufacturing machine, the ratio will be the legal test used to find duty of care; any historical comments or policy observations in the judgment are obiter and persuasive only.

Supreme Court flexibility and lower-court obligations

Article 129(2)–(3) and related provisions give the Supreme Court the power to depart from its prior decisions when it 'appears to it right to do so.' All other courts are bound to follow Supreme Court decisions on questions of law. The Court of Appeal is generally bound by its prior decisions (subject to constitutional wording permitting otherwise). Lower courts must follow both the Supreme Court and Court of Appeal on questions of law. This allows legal development while maintaining certainty: the Supreme Court provides final clarification and may correct or refine earlier law.

Equity, law and the Ghanaian context

Equity (the historic body of principles developed by Courts of Chancery in England) is explicitly recognised within Ghana’s common law description in Article 11(2). That means Ghanaian courts may apply equitable doctrines — trusts, fiduciary duties, equitable remedies (injunctions, specific performance, equitable estoppel) — subject to domestic statute and the Constitution. The historic institutional separation (law courts versus equity courts) no longer controls modern practice: in Ghana, superior courts exercise all judicial powers and may grant equitable remedies where justified.

Illustration: A plaintiff seeking an injunction to stop an impending wrongful construction can ask the High Court for equitable relief; the court will apply equitable principles (clean hands, adequacy of damages, balance of convenience) and may grant an injunction even where common-law damages would be inadequate.

Customary law — character, limits and proof

Customary law consists of rules and practices of a particular community which courts may apply in disputes involving persons subject to that custom. Customary law is subordinate to the Constitution and inconsistent statutes. A custom that is 'repugnant to natural justice, equity and good conscience' or incompatible with human rights guaranteed by the Constitution cannot be applied. Customary law must be proved in court whenever it is not judicially noticed; proof may come from expert evidence, authoritative compilations, decisions of superior courts, or codification instruments (for example, Chieftaincy Act provisions and rulings of the National House of Chiefs).

Illustration: A disputed succession rule recognised in a particular traditional area is a matter of customary law; the plaintiff must produce evidence (testimony of elders, authoritative texts, previous superior court decisions) to establish the custom’s content and application to the parties.

Reception and continuing role of English law and received statutes

Ghana’s modern legal system is built on received English common law, statutes of general application in force on certain colonial dates, and locally enacted legislation. Article 11 recognises the common law and equity as sources of law; courts may therefore look to English decisions as persuasive authority where no local authority exists, but English decisions are not binding on Ghanaian courts. Over time, local judicial development, statutes and constitutional principles may displace received rules.

Subsidiary legislation, rules of court and their legal force

Subsidiary legislation (Orders, Rules and Regulations) made under powers conferred by the Constitution or Acts of Parliament form part of Ghanaian law (Article 11). Rules of Court Committee instruments (for example the CI 59 rules) regulate practice and procedure; they have legal effect to the extent authorised by statute and must be consistent with primary legislation and the Constitution. Practice Directions may guide court practice but cannot override statute.

International treaties and domestic effect