Today, on the legal map of the world, there are two legal systems that have developed historically over the centuries: the Romano-Germanic legal system and the Anglo-American legal system. They are classical legal systems, and it is they that have a decisive influence on the legal systems of individual states.
1.3.1. The Romano-Germanic (normative) type of legal system
The Romano-Germanic (normative) type of legal system is more common than Anglo-American. It includes the national legal systems of France, Belgium, Holland, Italy, Spain, Germany, Austria, Switzerland, Scandinavian countries. The legal systems of the Slavic countries, in particular Ukraine, are related to this particular type of legal systems. The geography of the Romano-Germanic type of legal system currently extends beyond Europe: Latin America, part of Africa, Japan, Indonesia.
In its formation, the Romano-Germanic legal family went through three main stages:
1) the era of the Roman Empire – XII century. not. – the emergence of Roman law and its decline in connection with the demise of the Roman Empire (476 AD), the dominance in Europe of archaic methods of dispute resolution – duels, ordeals (trials), witchcraft, etc., ie the actual absence of law in the modern sense this word;
2) XIII-XVII centuries. – the revival of Roman law, its spread in Europe and its adaptation to new conditions, the independence of law from royal power;
3) XVIII century. – to this day – the codification of law, the emergence of constitutions – Poland and France (1791) and sectoral codes – the Civil Code of France in 1804. (Napoleon’s Code), the Civil Code of Germany (1896 p.), The creation of national legal systems.
Characteristic features of the Romano-Germanic type of legal system:
1) This type of legal system originated and developed in continental Europe. For the countries of this region were common stages of development of society – from barbaric to civil, as well as stages of development of the state – from the patrimonial monarchy to the constitutional state. In addition, all the social and political systems of continental Europe were strongly influenced by the Roman social and legal order;
2) common sources of law of the Romano-Germanic type: Roman law, which was received by all legal systems of the continent since the XI century; customary law of the German and Slavic tribes (“barbaric truths”). From Roman law were adopted the division of law into private and public, the construction of most property and personal rights and legal relations (property, marriage, contract, will);
3) a clear, coherent system of sources of law, among which the main form is a legal act. All other forms of law are used only in cases stipulated by law. Normative legal acts, as a rule, are built according to the following hierarchical scheme: constitutional (organic) laws – ordinary (current) laws – bylaws.
Common codified regulations;
4) the law is clearly structured, namely: there is a division into public and private, industry and institutions. Among the branches of law, constitutional, administrative, civil, criminal, as well as civil procedural and criminal procedural law are considered basic;
5) the legal terminology of the countries of continental Europe is unified and is mainly borrowed from Roman law (contract, vindication, deposit, easement, etc.);
6) the leading role in law-making belongs to the legislator, as a rule, to the representative body of state power;
7) the dominant legal doctrine – the doctrine of the rule of law. First, it means that the law has the highest legal force and all other regulations must be brought into line with the law, and in case of conflict with the law, any act can be challenged or repealed. Secondly, according to the doctrine of the rule of law, the law enforcer is obliged to act strictly in accordance with the law, without creating new legal norms;
8) substantive law has a decisive influence on the development of procedural law. Procedural branches of law are considered as entities that “serve” the rules of substantive law;
9) in the process of developing new legislation and in the training of lawyers a prominent place belongs to theoretical constructions.
At this time, legal systems belonging to the Romano-Germanic type borrow some features of Anglo-American law. In particular, the role of procedural law is increasing, case law and legal precedents are being used more widely.
1.3.2. The Anglo-American (precedent) type of legal system
The Anglo-American (precedent) type of legal system includes the national legal systems of England and Wales, the United States, Canada, the Commonwealth of Australia, New Zealand, and some other countries. The influence of English law extends to India, Nigeria and other countries of the Commonwealth.
The British legal system has gone through four main stages in its formation:
1) to 1066 (the Norman conquest of England) – from the essence of common law; the main source of law were local customs, different for each area;
2) 1066-1485 pp. (from the Norman conquest of England to the establishment of the Tudor dynasty) – the centralization of the country, the creation, contrary to local customs, common law for the whole country, which was sent by the royal courts;
3) 1485-1832 pp. – the period of flourishing of common law and the beginning of its decline. The rules of common law began to deviate from reality: first, common law was very formal and cumbersome, which reduced its effectiveness; secondly, cases which were difficult or impossible to decide on the basis of common law began to be decided by the “law of justice”, which was created independently by the English Lord Chancellor (representative of the king), based on the principles of justice;
4) 1832 – to the present time. As a result of the judicial reform of 1832, judges were given the opportunity to decide legal cases at their own discretion, based on both common law and their own understanding of justice – “judges create law, law is what judges say about it”. The spread of such a system to the English colonies, where they took root, taking into account local specifics.
Characteristic features of the Anglo-American type of legal system:
1) the formation within England and the colonies created by it, which led to the common origin of this type of legal system;
2) the original sources – the common law of England, which arose after the Norman conquest of England (1066), during the judicial reforms of Henry II (XII century.); “Right of justice”, which was formed in the practice of the court of the Lord Chancellor in the XV-XVII centuries; statutory (parliamentary) law, which began to take shape from the end of the XIII century.
After the reforms of the XIX century. the precedent of essentially “common law” and “the law of justice” were to merge completely, but this was only partially done. Until now, the right to justice includes, for example, the institution of trust property, liability for damage;
3) the specifics of the sources of law. The Anglo-American type of legal system is characterized by a historically established form of law – legal (judicial and administrative) precedent. Precedents are not created by all, but only by higher courts: for example, in England it is the House of Lords, the Court of Appeal, the High Court. Courts are obliged to follow the precedents of higher courts and their own precedents. But today the importance of statutory (legislative) acts has also increased. The relationship between precedents and statutes is expressed in the aphorism: “Precedents are the stones from which English law is built, and statutes are the inscriptions on it”.
The most important difference between the Anglo-American type of legal system and the English is the defining role of the Constitution as the main source of law and, accordingly, much more important legislative acts (in particular – codified) in the system of sources of law. At the same time, precedents are set and operated in both at the federal and state levels;
4) a peculiar structure of law. In particular, there is no division of rights into public and private. The main subdivisions of English law are “common law”, “justice” and statutory law. The division in the field of law is different than on the continent. Thus, together with family and civil law, there are separate joint-stock, tort and contract law. The ratio of substantive and procedural law is such that the second initiates the development of the first and is not considered as ancillary to the first;
5) the existence of two types of rules. Legislation is a code of conduct of a general nature. Norms Precedent law have a specific casuistic nature;
6) the autochthonous nature of legal terminology, which is traditionally English, often archaic in nature (for example, trust – trust property). However, English law still borrowed from Roman law a significant set of terms (for example, the terms “contract”, “restitution” and many others are widely used in English law);
7) the main role in lawmaking is assigned to the courts, which, in this regard, occupy a special place in the system of state bodies. The English court, being neutral, does not side with the state. Both the state, which cares about the public interest, and individuals who protect private interests are forced to prove their rightness in court on an equal footing. No less important is the court in the UK. The state regime, for example, is sometimes defined as “the rule of judges”, and the content of the Constitution – as what the court will say about it;
8) the dominant doctrine – the doctrine of the rule of law (rule of law). It is presumed that law as embodied justice exists regardless of its enshrinement by law, and the judge only specifies the principle of justice in a particular case. According to this doctrine, all subjects of law without exception, including the state, are equal before the law and the court;
9) an empirical approach prevails in the development of legal regulation and in the training of lawyers. In particular, higher legal education is still not required, although desirable, to practice law in the UK. Justices of the peace (magistrates), who rule in the vast majority of cases, are not lawyers by education: they only have to be virtuous citizens with average wealth and some life experience.
At this time, the Anglo-American type of legal system was largely close to the Romano-Germanic. This is especially evident in American law, where there is a clear structure of the legal system and systematized legislation, there are codified federal constitutions and state constitutions. In the UK itself, the importance of legislation is growing. There are changes in the training of lawyers. If earlier English lawyers studied mainly in practice, now the priority has been given to university education.
1.3.3. Religious type of legal system
There is a special type of legal system – the religious type of legal system. The main criterion for distinguishing this type of legal system is the state recognition and provision of religious precepts.
Historically, many religions have been centers of law-making and, ultimately, state-building. Examples are the Sinai law of the ancient Jews or canon law in medieval Europe. But nowadays, within the religious type of legal system, there are only two subsystems – Muslim and Hindu law. The religious type includes the legal systems of such Muslim countries as Iran, Iraq, Pakistan, Sudan and others, as well as the Hindu law of the communities of India, Singapore, Burma, Malaysia and others.
Characteristic features of the religious type of legal system:
1) The dominant place in social regulation is not the rule of law, religious norms. The main creator of law – God, not society or the state, so the legal instructions are given once and for all, they must be believed and, accordingly, strictly adhered to. Thus, in Muslim society, the norms of Islam take precedence over positive legislation, and the latter must comply with the Qur’an;
2) The source of law are the sacred books: the Koran, Sunnah, Ijma, which apply to Muslims; Shastras, Vedas, Laws of Manu, which apply to Hindus. Based on them, the actual legal forms in the form of interpretations and comments are created. Religious and philosophical ideas of Islam, Hinduism play the role of principles of law.
Normative legal acts (legislation) are of secondary importance. Judicial practice in the proper sense of the word is not a source of law;
3) a special place in the system of sources of law have the works of theologians (doctrines), which specify the interpreted primary sources and form the basis of specific decisions;
4) legal norms are not dismembered with the norms of religion, but form a syncretic unity with them. Thus, the norm of Muslim law is seen as a universally binding rule of conduct addressed to Muslims by Allah;
5) the law is not structured, namely – there is no usual for the Romano-Germanic type of division of law into private and public, in the field and institutions. For example, Muslim law contains the following structural communities: rules for the exercise of religious duties, the right to personal status, tort law, regulation of property relations;
6) legal regulation is dominated by obligations, in contrast to the systems of European law, where permits predominate.
The religious type of legal system is the least prone to external influences. This type of law is characterized by stability, even conservatism, and sometimes intolerance of other influences.
1.3.4. The characteristics of the EU Law
The EU law was formed at the intersection of international law and national law. It is a separate, special sui generis legal system, which combines legal institutions, principles and mechanisms of international and national law.
The EU law is supranational in nature, as it has the highest legal force in relation to the national law of the member States.
In accordance with the principle of the rule of law of the EU, any rule of law of the Union, regardless of its form of existence, has the highest legal force in the national legal order of each member state with respect to any rule of law of such state, regardless of the form of its consolidation.
The EU law has a direct effect on the national law of the member States. According to the principle of direct action, the EU law confers subjective rights and obligations not only on member States, but also directly on natural and legal persons who can protect their rights guaranteed by EU law by filing claims in the courts of member States, that is, within the national legal system.
In its focus, the EU law is integrative, as it introduces uniform, unified rules of conduct for all member States, individuals and legal entities under the jurisdiction of the EU.
The EU law has a significant impact on the national law of the member States and determines the development of the national legal systems of the member States. Also, the EU law has a significant impact on the legal systems of third countries. The basis of such influence is international cooperation agreements, including Association agreements, which contain obligations to harmonize national legislation with EU law.
The EU law is characterized by its own structure and sources of law, forms of lawmaking and law enforcement, and specific mechanisms of protection against possible violations.
The basis of the EU legal system are its constitutive treaties, i.e. the Treaty on European Union (1992) and the Treaty on the Functioning of the European Union (1957), Charter of Fundamental Rights of the European Union (2000) in the wording of the Lisbon Treaty 2007. The provisions of those acts are detailed and specified in numerous acts of secondary law (regulations, directives, decisions, etc.) adopted by the institutions of the EU, the case-law of the Court of justice of the EU.
EU legislation is divided into primary and secondary. The treaties (primary legislation) are the basis or ground rules for all EU action.
Every action taken by the EU is founded on treaties that have been approved voluntarily and democratically by all EU member countries. For example, if a policy area is not cited in a treaty, the Commission cannot propose a law in that area.
A treaty is a binding agreement between EU member countries. It sets out EU objectives, rules for EU institutions, how decisions are made and the relationship between the EU and its member countries.
Treaties are amended to make the EU more efficient and transparent, to prepare for new member countries and to introduce new areas of cooperation – such as the single currency.
Under the treaties, EU institutions can adopt legislation, which the member countries then implement.
The main treaties are:
Treaty of Lisbon.
Signed: 13 December 2007; Entered into force: 1 December 2009.
Purpose: to make the EU more democratic, more efficient and better able to address global problems, such as climate change, with one voice.
The Lisbon treaty clarifies which powers:
– belong to the EU
– belong to EU member countries
– are shared.
Treaty of Nice.
Signed: 26 February 2001, Entered into force: 1 February 2003.
Purpose: to reform the institutions so that the EU could function efficiently after reaching 25 member countries.
Main changes: methods for changing the composition of the Commission and redefining the voting system in the Council.
Treaty of Amsterdam.
Signed: 2 October 1997; Entered into force: 1 May 1999.
Purpose: To reform the EU institutions in preparation for the arrival of future member countries.
Main changes: amendment, renumbering and consolidation of EU and EEC treaties. More transparent decision-making (increased use of the ordinary legislative procedure).
Treaty on European Union – Maastricht Treaty.
Signed: 7 February 1992; Entered into force: 1 November 1993.
Purpose: to prepare for the European Monetary Union and introduce elements of a political union (citizenship, common foreign and internal affairs policy).
Main changes: establishment of the European Union and introduction of the co-decision procedure, giving Parliament more say in decision-making. New forms of cooperation between EU governments – for example on defence and justice and home affairs.
Single European Act.
Signed: 17 February 1986 (Luxembourg) / 28 February 1986 (The Hague); Entered into force: 1 July 1987.
Purpose: to reform the institutions in preparation for Portugal and Spain’s membership and speed up decision-making in preparation for the single market.
Main changes: extension of qualified majority voting in the Council (making it harder for a single country to veto proposed legislation), creation of the cooperation and assent procedures, giving Parliament more influence.
Merger Treaty – Brussels Treaty.
Signed: 8 April 1965; Entered into force: 1 July 1967
Purpose: to streamline the European institutions.
Main changes: creation of a single Commission and a single Council to serve the then three European Communities (EEC, Euratom, ECSC). Repealed by the Treaty of Amsterdam.
Treaties of Rome : EEC and EURATOM treaties.
Signed: 25 March 1957; Entered into force: 1 January 1958.
Purpose: to set up the European Economic Community (EEC) and the European Atomic Energy Community (Euratom).
Main changes: extension of European integration to include general economic cooperation.
Treaty establishing the European Coal and Steel Community.
Signed: 18 April 1951; Entered into force: 23 July 1952.
Expired: 23 July 2002
Purpose: to create interdependence in coal and steel so that one country could no longer mobilise its armed forces without others knowing. This eased distrust and tensions after WWII. The ECSC treaty expired in 2002.
Regulations, Directives and other acts.
The aims set out in the EU treaties are achieved by several types of legal act. Some are binding, others are not. Some apply to all EU countries, others to just a few.
A “regulation” is a binding legislative act. It must be applied in its entirety across the EU. For example, when the EU wanted to make sure that there are common safeguards on goods imported from outside the EU, the Council adopted a regulation.
A “directive” is a legislative act that sets out a goal that all EU countries must achieve. However, it is up to the individual countries to devise their own laws on how to reach these goals. One example is the EU consumer rights directive, which strengthens rights for consumers across the EU, for example by eliminating hidden charges and costs on the internet, and extending the period under which consumers can withdraw from a sales contract.
A “decision” is binding on those to whom it is addressed (e.g. an EU country or an individual company) and is directly applicable. For example, the Commission issued a decision on the EU participating in the work of various counter-terrorism organisations. The decision related to these organisations only.
A “recommendation” is not binding. When the Commission issued a recommendation that EU countries’ law authorities improve their use of videoconferencing to help judicial services work better across borders, this did not have any legal consequences. A recommendation allows the institutions to make their views known and to suggest a line of action without imposing any legal obligation on those to whom it is addressed.
An “opinion” is an instrument that allows the institutions to make a statement in a non-binding fashion, in other words without imposing any legal obligation on those to whom it is addressed.
An opinion is not binding. It can be issued by the main EU institutions (Commission, Council, Parliament), the Committee of the Regions and the European Economic and Social Committee.
While laws are being made, the committees give opinions from their specific regional or economic and social viewpoint.
For example, the Committee of the Regions issued an opinion on the clean air policy package for Europe.
1.3.5. The characteristics of the Ukrainian legal system
The Ukrainian legal system belongs to the Romano – Germanic (continental) type of legal system as a kind of a system of a special European type.
In Ukrainian law, the law (normative act) has priority, not a court decision (precedent), as is typical of the Anglo-American legal family.
At the top of the normative acts is the Constitution of Ukraine. According to Article 8 of the Constitution of Ukraine, the Constitution of Ukraine has the highest legal force. Laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and must comply with it.
The European integration vector of Ukraine’s development is the foundation for the convergence of Ukraine’s national law with European law.
Historically, the legal system of Ukraine gravitated to the Romano-Germanic legal family. For example, the Statutes of the Grand Duchy of Lithuania, “The Rights Under which the Little Russian People Are Tried” and other sources of Ukrainian law were built according to the type of Romano-Germanic law.
During the Soviet period, the legal system of Ukraine was part of the family of socialist (ideological) law. However, even then the legal system of Ukraine retained the main feature of Romano-Germanic law, namely – the normative-act nature of the sources of law.
The transitional nature of Ukraine’s legal system (like other post-Soviet countries) has led to controversy over its place on the legal map of the world.
According to one view, the former affiliation of the socialist countries to the Romano-Germanic legal family allows us to speak only of their return to this community.
According to another, the historical and ethnocultural specifics of Eastern European countries suggests that the post-Soviet Slavic countries form a Slavic legal family.
The principles of the rule of law proclaimed by the Constitution of Ukraine have provided a significant change in the content of the norms that form the basis of the legal system of Ukraine. Within the system of law, changes have taken place in the composition and content of the rules of both public and private law. The consequence of the recognition of the priority of universal values over the state was a wider dispositive behavior of the subjects.
In general, the structure of the system of national law in the form of its division into industries, institutions and norms, remained the same, but due to changes in the system of public relations changed the subjects of legal regulation, which serve as a basis for differentiation in industries and institutions. The consequence of this was the emergence of new industries, institutions and norms (tax, budget, banking, land law, etc.).
One of the trends in the development of Ukrainian law is its close interaction with the principles and norms of international law. The process of convergence of the legal system of Ukraine and European countries involves the interdependence of international and national law.
The sources of law in modern Ukraine are acts of national law and acts of international law. Speaking about the legal system of Ukraine in the formal-legal sense, we can distinguish between primary and secondary sources, as well as sources of primary and secondary nature.
Ukraine is a country of codified law. The main source of national law is a normative legal act. At the head of the hierarchy of normative legal acts is the Constitution of Ukraine, followed by laws and bylaws. International treaties ratified by the Verkhovna Rada of Ukraine are an integral part of its legal system. If the rules of an international treaty of Ukraine differ from the rules of its domestic nature, the rules of the international treaty shall apply.
Additional sources of law are regulations, legal customs, legal precedent.
Among the sources of Ukrainian law, the importance of the legal agreement is growing significantly. Normative agreement is used as a source of law in the field of public international law, constitutional law, labor law, its distribution also takes place in the field of administrative and civil law.
Legal precedent is derivative in relation to other sources of law. There are so-called precedents of interpretation (normative interpretative acts) and judicial precedent.
Precedents of interpretation are created by the Constitutional Court of Ukraine, the Supreme Court of Ukraine, the Supreme Commercial Court of Ukraine. These acts have some normative features, but are not self-sufficient and are valid only as long as the act is valid, the interpretation of which is related to the relevant precedents.
Judicial precedent (a variant of which is the generalization of judicial practice) is not officially recognized as a source of law. However, in fact, its role has grown significantly in recent decades. Increasingly, in resolving specific cases, law enforcement officials refer to the decisions of higher courts.
As a result, it should be noted that today the legal system of Ukraine as a whole corresponds to the characteristics of the Romano-Germanic family, returning to it after more than seventy years of domination of the socialist system.