The knowledge of the essence and role of the law in life demands a broad approach to the legal phenomena in the whole variety and interaction among themselves and also the accounting of the functional properties of the legal events concerning a person, a state, and society. Together with the numerous definitions of the legal concept reflecting and disclosing its essential lines in the scientific jurisprudence, the concept “legal system” was approved. Historically, there were legal customs, traditions, legislation and jurisdictional bodies in each country, the features of the legal mentality and legal culture. The legal originality of the countries allows saying about their originality, that each of them forms the legal system – a set of all legal phenomena existing within its framework (Schubert 2010). Therefore, the given research paper will discuss early legal systems, current legal systems and the future perspectives of legal systems.
In the 20th century, the number of the national legal systems was almost tripled, at present approaching 200. The studying and comparison of various legal massifs, the detection of similarities and differences are undoubted, actual both for the practical legal, and for the foreign economic activity. The relevance consists in the fact that in the modern world, there is a set of legal systems the basis of which is made, sometimes, by the absolutely different branches and institutes of the law, and also ways and methods of the implementation of justice. Due to the fact that legal systems reflect the social, economic, political development and the level of the culture of people, and, therefore, their studying allows not only restoring the concept about the public relations, understanding the mechanism of society proceeding from the rights and duties, but also most accurately defining the borders of the distribution of this or that legal system in a definite country (Hertel 2009).
Early Legal Systems
A legal system is objective, historically natural legal phenomenon which includes the interconnected, interdependent, and interacting component, such as the legislation embodying it, the legal establishments, the legal practice, the subjective rights and duties, the legal activity and legal relationship, the sense of justice and culture, legal ideology, etc. Hertel (2009) states that the concepts of the legal system and the system of the law are not identical. In fact, the legal system is the generalizing concept including all positive phenomena connected with the law. The system of the law is a basic component of the legal system (Hertel 2009).
The Code of Hammurabi is the legislative codex of the old Babylon period formed during the reign of the Hammurabi tsar in the 1750th BC. Moreover, it is one of the most ancient legal systems in the world. Being the result of the big reform of the existing law, the Hammurabi’s Code was urged to unify and add the action of the unwritten standards of behaviour which arose in the primitive society order. These laws composed the top of the development of the cuneiform law of the ancient Mesopotamia and had been greatly rendering an impact on the legal culture of the Ancient East for many centuries (Harper 1904). The Code of Hammurabi was based on the use of the previous legal tradition of the ancient Mesopotamia, including both a common law and the imperial legislation. They compose the first considerable attempt of the unification of the law by the peculiar principles standing on the height of the requirements of the epoch (Harper 1904).
Despite the fact that they have been created at an early stage of the formation of the Middle Eastern class society which caused the comparative cruelty of the criminal penalties established by them, the laws differ in the exclusive reasonableness and symmetry of the legal regulation. Unlike the majority of other ancient monuments of the East, there is almost total absence of the sacral and religious motivation in the Hammurabi’s laws. Thus, it does them to be the first purely legal act in the history of the mankind.
The legal system of ancient Rome became the most developed legal system in the early societies. The basic principle of the Roman law is the statement that a state is the result of the established arrangement between its citizens for the solution of all legal questions in accordance with the rules accepted by the general consensus. This principle of the Roman law formed the basis of the republic, the most common form of the power at present (Hall 2014).
The Roman legal consciousness considers the justice brought out of equality as the basic principle of the law realization. Furthermore, in the Roman Republic, there is a three-stage legislative procedure. Each magistrate had the right of a legislative initiative. The draft bills were presented on the Roman Forum where Romans discussed it. All proposals on the change of the bill could be submitted to the magistrate. Then the People’s Assembly adopted or rejected the draft bill. Being the executive body of Rome, the Senate carried out the acceptance procedure check, and in the absence of the violations, the law came into force. The reception of the Roman law became the most important component of the formation of the Roman and German legal system in medieval Europe (Hall 2014).
Current Legal Systems
The legal map of the modern world looks rather floridly. It includes more than 200 national legal systems significantly differing from each other. It is quite natural as the legal system of a definite country developed within its own economic, social, political, cultural and religious frameworks (Hertel 2009). At the same time, the national legal systems do not only considerably differ from each other, have merits and demerits but also have the common features allowing formulating the global regularities and tendencies of the legal development.
There is no ideal legal model which would be equally suitable for all countries. It is connected with the fact that there are numerous points of view and approaches to the definition of the criteria for the classification of legal systems, and, therefore, to the allocation of different types of legal families. It is quite natural taking into account the complexity, versatility, and the known discrepancy of the considered matter (Steiner n.d.).
There are the following legal systems:
- Anglo-Saxon (England, the United States, Canada, Australia, New Zealand, etc.);
- Roman-German (the countries of the continental Europe, Latin America, some countries in Africa, and also Turkey);
- Religious and legal (the countries practicing Islam, Hinduism, Judaism as the state religion);
- Socialist (China, Vietnam, Democratic People’s Republic of Korea, Cuba);
- The common law system (equatorial Africa and Madagascar).
The legal systems of Great Britain (except Scotland), Canada, the United States, Jamaica, and Australia belong to the Anglo-Saxon legal family. The considered legal system includes Northern Ireland, New Zealand, and also 36 member-states of the British Commonwealth. The principle of stare decisis means that the norms are formulated by judges at the development of the court decision – the dominating power belongs to the precedent.
In the United States, the legal sovereignty started its development in the 18th century from the struggle for independence. The process of the legal sovereignty of the states included in the Anglo-Saxon legal system does not mean their “withdrawal” from the developed legal family as the impact of the English law is not limited to the precedents, it causes the general type of legal thinking, the character and features of legal activity, used categories, concepts, designs and other different legal elements (Esquirol 2011).
The American legal system has several layers, more possibly than in most other nations. One reason is the division between federal and state law. To understand this, it helps to recall that the United States was founded not as one nation, but as a union of 13 colonies, each claiming independence from the British Crown (Bureau of International Information Programs 2004).
According to Esquirol (2011), the legislative procedures in the United States have its own specificities. Law making is the established type of the law creation process, regulating the order of the law making activity concerning the development, acceptance and publishing of the law. There are four main stages of the legislative process in the United States, namely the legislative initiative, discussion of the bill in the parliament, adoption of the law, promulgation and the entry-into-force (Esquirol 2011).
The stage of the legislative initiative represents the official introduction of the bill by the authorized subject. A bill is the text of the future law with all necessary attributes – a preamble, sections, chapters, etc. The stage of the bill discussion includes the work on the bill both at the plenary sessions of chambers, and in the special committees and commissions. The discussion of bills at plenary sessions often takes place in the form of readings. As a rule, the law is adopted in three readings. The termination of the bill discussion is made out by the special decision of the chamber, and then the legislative process passes into the stage of the law adoption. As a matter of fact, this stage serves as the completion of the last reading in the unicameral parliaments.
The custom supported by the judicial precedent is the primary source of law in the Anglo-Saxon legal system. The legislation is considered as a kind of the contract. Owing to the ambiguity of the interpretation of many decisions, such system creates the room for the judicial discretion. There is a hierarchy of precedents according to which the decisions made by Superior courts are obligatory for the subordinate ones. There are two groups, English and American, in the structure of an Anglo-Saxon legal family. Each of them has its own characteristics. In the United States, there is a tendency to the mixture of the principles of the Anglo-Saxon and Romano-German legal systems: the first one is widespread at the low level, but there is the tendency to the codification of the law in the process of the increase of the jurisdiction level (the US Code) (Hertel 2009).
The judicial precedent is the most important source of the Anglo-Saxon legal system. It was the main form of expression and fixation of the English legal system. The law (statute) is the other source of the Anglo-Saxon law. It appeared much later after the precedent but gradually got its importance in the legal regulation of the public relations. The English acts are classified by the different bases. They are divided on the public, extending to the uncertain circle of subjects and acting throughout Great Britain, and private, extending to individuals and the territory. Quite often, the Parliament delegates the powers on the adoption of the regulations to other subjects. The validity of such acts is defined by the transfer of the part of legislative functions of the Parliament to the appropriate authority. Therefore, their decisions are considered to be a part of the law and are obligatory to the execution of all citizens.
Besides, the autonomous legislation includes the acts of the local authorities existing in the respective territory, some establishments and organizations (the Anglican Church, labour unions, the railway, construction, transport, gas companies, Legal society, etc.). They make decisions which are obligatory for their members and users of their services. The validity of such acts concedes to the force of Parliamentary acts and delegated legislation. The statute has priority if compared to the precedent. However, it does not mean that the precedent is made of the law and is secondary by its essence. The originality of the Anglo-Saxon law consists in the fact that the law is realized not independently but by means of precedents. Before becoming the existing act, it has to “acquire” the obligatory judgments concretizing it.
New Era Legal System
Time in society is the measure of the variability of the processes occurring in society. At the different stages of the social development, the rhythms of the social processes changed differently. For a long time, a reference point of the public practice was the repetition of the saved-up experience and the reproduction of the past actions. Since the beginning of the 20th century, there was mainly the negative relationship of a personality with the legal institutes. There was a rupture of the interrelation of the real interaction of the past and future and, as a result of it, rooting of the tendency to absolutize the future (Slaughter & Burke-White 2006).
The new era legal systems should become more democratic. Only the legislative body has the right to turn the legislative innovation into the legal act, obligatory for execution. In the presence of a full-fledged, independent and authorized legislative branch of the power, any complementary institutions lose their substitute character. Owning to the political competition in the parliament, their activity will allow providing them with the access to the legislative process (Slaughter & Burke-White 2006). Moreover, in this case, the developing technologies of the information transfer and the so-called “new sociality”, the civil activity by means of various electronic means of exchanging data will involve the broad masses of interested citizens into the law-making process, having made it democratic.
There should be some changes in the future legal systems. Firstly, they should become more automated and computer-operating. They should use eco-technologies for the simplification of the process of the legal actions. The computer-operating legal system presupposes the introduction of new informational technologies, creation of big informational centres, expert and consultation systems. The computer-based operation of any world legal system should become the part of the state policy. Such stages of lawmaking work should be subject to the automation as the preparation and formation of the text of the bill and related documents, the unified registration of the lawmaking documentation, the account and control of the conditions and terms of consideration and passing of bills.
The automated system of the organizational management is intended to support the planning of the lawmaking work, the coordination of the activity of committees, fractions, and deputy groups. The computer-operating legal system will include the initial variants of the draft bill, interim variants, the bill movement stages, the information about the people responsible for the condition of the bill, etc. (Whitten 2016). The system should carry out such operations as the input of the information in the database, search for the information on the dynamics of the bill, reference information, etc.
Artificial intelligence is the future of the legal system and aims to incorporate AI into “the legal team of every lawyer in the world”. The computing system then gathers evidence, reads through laws and draws inferences about the material it has collected (Whitten 2016).
Secondly, the drafting of laws needs to use the universal language, be clear, and transparent. The principle of the equality should be followed. The future smart legal system should forbid two types of legal procedures, such as closed discussions and accelerated prosecutions of draft laws. There should not be any zero readings and consultations; the bills should be discussed at the open public meetings (OSCE 2012). All extraordinary procedural norms allowing adopting the bills in the special cases without the discussion and intermediate readings should be cancelled. The principle of the general equality in front of the law should find the logical reflection in the general equal access to the formation of these obligatory laws (Office of the Queensland Parliamentary Housing 2014). Its practical embodiment is impossible for a number of reasons, the foremost of which includes the increase in the population that has historically caused the transition from a straight line to the representative democracy. However, the development of the information technologies can return the future society to the sources of the polis democracy.
Another important shortcoming of the current legal systems includes the fact that there are the bad connections of all law layers. It leads to the misbalances in the legal systems, thus breaking the logical chain of the law-making and law-implementing process. All law layers, starting from the lowest up to the highest one, should be in close interaction with each other and with the whole legal system (OSCE 2012). Thus, the future legal system should become smart and easily applied in practice.
The immigration law is another vital issue of all legal systems. At present, it is not developed enough, as it does not contain the efficient legal base for the labour law of migrants. The future smart legal systems should develop the well-grounded base for the legal work of migrants in different countries. These new labour laws should protect and support the rights of the migrants and become the basis for their working promotion in the host country (UK Border Agency 2009). Moreover, the new types of contracts should make the transactions smoother. The contracts should become the block chains, which will promote the easier ways of transactions.
There is no ideal legal system model which would equally be suitable for all countries. The recent expansion of the international relations, both economic and political, promotes the unification of the legal systems. The codification has the increasing value in the states of the “general law”, and the judicial precedent – in the countries of the continental law. Even belonging to the countries of the same large legal family, there are still essential distinctions between the national legal systems of these countries. As a result, the circle of the legal sources increases, but the ratio of their impact is all the same unequal. For example, the law and bylaw compose the main source of law in the countries with the Romano-German legal system (France, Germany, Italy); the leading role is played by the judicial precedent in the states whose legal systems belong to an Anglo-Saxon legal family.
At present, there is a tendency to increase the value of the law and bylaws in the Anglo-Saxon legal system. On the contrary, the role of jurisprudence and precedent grows in the states of the continental Europe. Besides, the integrating action resulted in the formation of the common market, which due to the uniform legal regulation stimulates the rapprochement of the legal sources. To sum up, the large-scale integration processes in the modern world give a special relevance to the comparison and convergence of various legal systems.