Jurisdiction: Civil & Common Law

AN OVERVIEW OF CIVIL AND COMMON LAW JURISDICTIONS

By Aurang Zaib Ashraf Shami

Being a vibrant concept, ‘Law’ is always interpreted and understood in its relevant perspectives. Generally, we usually heard, “Law is nothing, but common sense”. Various dictionaries, lingual or legal, provides that law is basically a system or set of established rules, which a particular country or community recognizes, regulating the activities of its participants and, usually, backed with certain sanctions, penal actions for the purposes to ensure its enforceability. The time we try to understand any particular law, or precisely, any established system, it starts with some very basic concepts, namely, the authority of the rule-maker, objectives, subject, jurisdiction, a delegation of power, etc.

Besides other basic concepts, considering the very centric to any legal system is ‘jurisdiction’. In any system of law, it is a very relevant concept making the set of rules and ‘subject of law’ as privy to each other. Jurisdiction is the right and authority (of a ‘Law’, ‘Office’, ‘State’ or ‘Organization’) over the territory, subjects (natural and legal persons), institutions, and infrastructures in its ‘relevant perspective’. Jurisdiction can be, sometimes, interpreted into negative terms as, besides extent of powers and authority, it also provides ‘limitations’ or ‘restrictions’ – in context of some other law or counter-jurisdiction. Jurisdiction provides power-contrast in aesthetical manner to maintain the balance of any state, organization, society, and to maintain harmony among the members. ?

In the contemporary times of developed world, these are jurisdictions which have either maintained the junctions of ‘States’ or the developed rivalries over the rights and authorities. Each state of the world have its own style of affairs to govern its ‘territory’ and ‘nationals’, in facts, generally, there is always a supreme law of ‘that state’ which provides: governance, authority, institutions, prime figures, etc. Every state has its independent approach to define and develop its laws, which ultimately, provides different jurisdictions namely, i.e. territorial, pecuniary, subject matter, original, concurrent, etc. Among the various disciplines of administration of justice, there are generally followed two types of legal systems i.e. common law and civil law.

Considering the universality among most of the developed countries of the world, civil law based legal system is followed. Some of the prominent and developed countries of the world following civil law based legal systems include Japan, China, Germany, Spain, etc. In civil law, basic structure, administration, and principles are generally codified, properly legislated following an established system. Therefore, these are the basic laws legislated and enacted by the superior authority of the state and administered through the judicial mechanism and law-enforcement agencies. In the perspective of ‘jurisdiction’, there are always well-established concepts, principles and powers provided under specific legal documents (enactment, code, constitution, act, ordinance, etc.). Thus, civil law provides a definite system, rules of interpretation, judicial system, implementation mechanisms, and grievance redressal mechanisms. There may be certain general laws to deal with the affairs of common issues, available in general and common circumstances, to all ‘subject’ of that particular state; contrary to the same, there may be certain matters which require an independent approach or different mechanism to be dealt-with. In civil law societies, therefore, there may be different general and special laws, ultimately, providing detailed mechanisms and established jurisdictions allowing the maximum affairs faced either by the state itself or its nationals. Another significant factor, which also supports and witnesses, the structured legal system is the matters are dealt with in prescribed jurisdictions and even the judges are not allowed to interpret relying upon the ‘precedents’.

On the other hand, there is a system based on general understanding and commonly observed principles, also termed as equitable rights and redressal system, which is known as the common law-based legal system. The laws are not generally found in tabulated or codified forms, and the ‘matters’ are decided in the purview of ‘judicial decisions' and in this way, judges are considered to enjoy the most influential authority. Common law is also practised in various developed countries including United Kingdom, Australia, New Zealand, India, Canada, and Hong Kong. Reference to the biggest example of UK is always referred that, even there is no written constitution, but they are ruling artistically enjoying the royal prerogatives by the Queen. Freedom of judges to relying upon the precedents and interpreting the facts make the jurisdiction flexible, and not being rigid as under civil laws. Common law practices are considered as the outcome of the evolvement of the British empire and its colonies.

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