CUSTOM/TRADITION
O THERS?
INTE
RNATIONAL LAW
R EL IGIOUS LAWS STATE
LA W
NOC
FL ICT
INSP IRED
CUSTOM/TRADITION
O THERS?
INTE
RNATIONAL LAW
R EL IGIOUS LAWS STATE
LA W
NOC
FL ICT-IN
SPIRED
| THE JUSTICE SYSTEM
Not all systems apply in all facets of life. For example, many components of commercial law exist only within the state’s formal legal system, and not in other systems such as cus-tomary law. Systems may operate in parallel; for example, a jirga, a village council that acts as an informal dispute resolution mechanism in Pakistan, is neither formally recognized nor sanctioned by the state legal system.
In some cases, there may be clashes between legal systems or, alternatively, systems may be complementary and mutually reinforcing. For example, custom in one country may require that a rapist must marry his victim in order to preserve family honor, but this may conflict with state law that classifies rape as a serious crime to be prosecuted through the court system. In other situations, state law may allow for religious law to apply in certain cases and for certain groups within a society. The areas where there are contradictions and clashes between legal systems are of most concern when determining the way forward toward a rule of law culture. These clashes can undermine people’s belief and trust in the justice system and the government. The clashes can also often undermine the rights of certain people or groups, therefore undermining the principle of inclusiveness—that all people are equal before the law and all people’s rights and freedoms are respected and protected.
These clashes undermine progress toward achieving strong rule of law.
For the purposes of this guide, the specific content of these various systems is not discussed.
As explained above, every context is unique, and therefore this guide focuses on providing readers with basic knowledge and tools for undertaking the analysis of their own systems.
The first step in applying analytical skills and tools is to acquire a good understanding of how people seek and attain justice and security; that is, what are the legal systems in a specific context? For example, the Nigerian context is analyzed below.
To fully understand the legal framework or system of laws in a specific context, rule of law culture promoters should ask questions such as:
• Why do these systems exist?
• What level of influence does each system have within a society?
• What is the level of legitimacy of each system within a society?
• Which groups perceive the systems as more or less legitimate and why?
• Whose interests do the systems serve?
• Who stands to gain or lose by reforming these systems?
• How do these systems interact with one another?
Chapter 4, Part 1: A Systematic Approach
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In Nigeria, there are eight overlapping sources of law that make up the country’s legal system, namely: English common law; military decrees and edicts; British statutory laws; customary law; Nigerian statutes adopted by civilian administrations following 1960; Shari’a law; the penal code, imported from Pakistan; and informal customs and practices.
Statutory laws include those that were imported from England by the Statute of General Application of 1900, which made all statutes in force in England on January 1, 1900, automatically part of the Nigerian legal system.
Statutory laws also include English law (statutes) made up to October 1, 1960, when Nigeria gained independence, that extended to Nigeria and that have not yet been repealed. English common law is most often used in courts and can be applied in any case. Military decrees have generally become statutory laws; for example, the Land Use Decree became the Land Use Act. Nigerian statute law exists at a federal level; each of the country’s thirty-six states and the federal capital territory Abuja also has its own statute law.
Customary laws vary across the ethnic groups of Nigeria but are all based on the concept of reconciliation. Customary courts are the lowest-level courts. Nigerian evidence law states that a custom cannot be regarded as law if it is “contrary to public policy, or is not in accordance with natural justice, equity and good consciousness.”
In Nigeria, there are three hundred different ethnic groups, leading to many different practices for resolving issues, and often involving the chief or king of a community as a decision-maker rather than having recourse to the courts.
Islamic law and the Pakistani Penal Code are applied only in states in northern Nigeria, where the population is predominantly Muslim. Islamic law originally applied only in civil matters. However, in the early 2000s, some northern states in Nigeria introduced the full Islamic legal system, including religiously based criminal offenses. The Supreme Court of Nigeria has not yet pronounced on the constitutionality of such punishments as amputation and the stoning of a person to death.
Not all the sources of law are codified, and sources can conflict with or contradict one another. For example, statutory law does not allow for polygamy, while customary law allows for males to have up to five wives.
Similarly, adultery is a crime that is punishable only under Islamic law and not under any of the other sources of law.
Source: Interview with Adewale Ajadi, Nigerian barrister, in Valletta, Malta, June 2014
Nigeria
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FORMAL LEGAL SYSTEMS
All domestic formal legal systems have a designated hierarchy of laws. The hierarchy can differ between countries but fundamentally plays a role in determining which laws prevail in the case of a conflict between two laws.2
In many countries, the constitution is the highest form of law, aimed at preserving the fundamental principles and values of a society.
The hierarchy of laws may also include:
• Case law of the Constitutional Court
• International law
• Decrees and presidential orders
• Codes and ordinary legislation
• Case law of lower courts/precedent
• Implementing regulations
For further details of applicable domestic laws, see O’Connor, Mapping the Justice System, 28–30.
The exact structure and content of the hierarchy of laws differ, particularly between countries with common law traditions and countries with civil law traditions. Variations also occur, however, among countries that share the same legal tradition.
The two largest formal legal-system families are common law and civil law, described on the following page. Most countries base their legal tradition on one of these families. One exception is Saudi Arabia, where the legal system is based on Shari’a.
Today, however, the idea of a “mixed” or “hybrid’’ system is increasingly becoming the norm.
It is increasingly common for a country’s legal system to include components of both legal traditions. For example, in certain cases, some civil law–based systems are now relying on judicial precedent, a common law doctrine.
Scotland and South Africa are two of the main exponents of the hybrid system.3 Cameroon is a country where a legacy of colonialism means that civil law applies to one people and common law to the other. Efforts have been taken to create a unified legal system, includ-ing, for example, the passing of a new criminal procedure code in 2007, which merged key features of both systems.4
Chapter 1, Part 1: Exploring Rule of Law
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Common Law
Common law5 is a peculiarly English development. Before the Norman Conquest, different rules and customs applied in different regions of the country. But after the inva-sion of England in 1066 by William the Conqueror, monarchs began to unite both the country and its laws using the king’s court. Justices created a common law by drawing on customs across the country and rulings by monarchs. As such, common law traditionally gives case law preeminence as a source of law. Legislation became more and more important in common law countries in the nineteenth and twentieth centuries.
Common law is based heavily (though not exclusively) on case law and the principle of stare decisis, which provides that cases decided by a higher court must be applied by a lower court. Case law is occasionally overruled by higher courts. The decisions of lower courts can be used to interpret the cases of higher courts and can be followed, but they are not binding. In common law systems, court cases continue to be a preeminent source of law, although statutory law has become more important over time. Statutes in the common law tend to be interpreted narrowly.
In a typical common law system, the initial investigation of a crime is carried out by the police, who gather evidence (often independently) and thereafter transmit the evidence to a prosecutor, who then files an indictment and prosecutes the case. The case is adjudicated by a judge and may be decided on by a jury of laypersons. Defense counsel will also participate actively prior to and during trial proceedings. Victims do not generally play an active role in common law proceedings, except as witnesses and in making victim-impact statements.
Common law spread to areas that had direct contact with England through settlement, conquest, or other means (for example, Australia, Canada, the United States, South Africa, New Zealand, and India).
Civil Law
In contrast to England’s common law, other European rulers drew on Roman law, and in particular on a compilation of rules issued by the emperor Justinian in the sixth century which was rediscovered in eleventh-century Italy. With the Enlightenment of the eighteenth century, rulers in various Continental countries sought to produce comprehensive legal codes. Civil law6 spread through parts of Europe and in nations on other continents that had adopted their own codes (e.g., Latin America, Africa, and Asia).
Civil law adheres to a strict hierarchy of laws: the constitution sits at the top, followed by treaties and international agreements, organic laws, laws and regulations (which are also called “implementing regulations”), and custom. Most branches of law are embodied in statute books or codes with annotations to specific law cases. In many civil law systems, prior judicial decisions are not technically binding on other decisions, although higher court decisions generally serve as persuasive precedent.
Civil law is a codified system based on the principle of legality, which provides that the legislature makes law and judges apply law. In civil law countries, legislation is seen as the primary source of law. Courts base their judgments on the provisions of codes and statutes, from which solutions in particular cases are derived.
| THE JUSTICE SYSTEM