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There are a number of different ways in which one can approach the phenomenon of international organization within the world order. The rationalist approach emphasizes the notion of a world order of states that is moving towards the more sophisticated types of order found within states. It is progressive in that it believes in the transformation of a society of states into a true world community based upon the application of universally valid moral and legal principles. In other words, the development of the United Nations into a real world authority is seen not only as beneficial but also as, in the long run, inevitable. This is to be accomplished by the gradual increase in the influence and responsibility of the organization in all fields of international peace and security. Thus international organizations have a profound substantive as well as procedural purpose, and are intended to function above and beyond mere administrative convenience. To put it another way, the rationalists emphasis the role of such institutions as active performers upon the world stage rather than as mechanisms to greater efficiency.

Another general line of approach is the revolutionary one, which regards international institutions in terms of specific policy aims. Here, the primary aim is not the evolution of a world community of states based upon global associations as perceived by the rationalists, but rather the utilization of such institutions as a means of attaining the final objective, whether it be the victory of the proletariat or the rearrangement of existing states into, for example, continental units.

The third approach which may be noted is exemplified by the doctrine of realism. This centers its attention on the struggle for power and supremacy and eschews any concern for idealistic views. The world stage is seen as a constant and almost chaotic interweaving of contentious state powers, and international institutions are examined within the context of the search for dominance. Both the league and the UN were created to reinforce the status quo established after the world wars, it is stressed, although the latter institution is now seen as reflecting the new balance of power achieved with the growth of influence of the states of the third world. Since what can be described as a world order is merely a reflection of the operation of the principle of the balance of power, realists see the role of world organizations as reinforcing that balance and enabling it to be safely and gradually altered in the light of changing patterns of power; although, to be accurate, their overall attitude to such organizations is usually characterized by cynicism, as the inherent weaknesses in these organization have become apparent.

A more hopeful way of looking at the international institutions is to concentrate upon those areas where the interdependence of states has impelled them to create viable organs for co-operation. By this means, by identifying such subjects for international agreement, it is hoped to be able to encourage growing circles of cooperation which may eventually impinge upon the basic political areas of world peace. This functional approach appears as a cross between the nationalist and realist trends and is one much examined in recent years.  This approach also emphasizes the pattern of institutional behavior and the operations of the relevant bureaucracies, including the way in which the tasks set for the organization are identified and completed. Decision-making analysis is another useful tool in this area

It is also possible to examine international organization in a variety of other ways, ranging form historical and comparative exposition to analysis of the legal rules underlying the establishment and operations of the particular institution.

Because of the great diversity of international and regional intergovernmental organizations, ranging from the United Nations to the North Atlantic Treaty Organization and the International Labour Organization, great difficulty has been experienced in classifying the relevant material. In this chapter, the simplest method of division into institutions of a universal character, regional institutions and the legal aspects of international institutions will be adopted. Within the relevant categories, the particular functions of different organizations, as well as their varying constitutional framework, will be briefly noted

The Chief functions of international organizations:

At present international organizations perform many functions and their functions are constantly increasing. Due to paucity of space it is not possible to mention here all the functions performed by international organizations. It will suffice to note here only those functions which are main in principle and which include other functions. Such functions are the following:-

I.One of the main functions of international organizations is keeping intact the sovereignty of states and despite their different social systems, they establish and expand peaceful cooperation among them.

II.The second main function is to ensure that the competition going on among the individual states remains peaceful.

The development of international organizations has been, in the main, a response to the evident need arising from international intercourse rather than to the philosophical or ideological appeal of the notion of world government. The growth of international intercourse, in the sense of the development of relations between different peoples, was a constant feature of maturing civilizations; advances in the mechanics of communications combined with the desire for trade to produce a degree of intercourse which ultimately called for regulation by institutional means.

The institution of the consul, an official of the State whose essential task was to watch over the interests of the citizens of this State engaged in commerce in a foreign port, was known to the Greeks and the Romans. It survives to this day as one of the less spectacular, but important, institutions of international law.The consul was not, however, concerned with representing his state as such, and for this purpose ambassadors were used, being dispatched for the purpose of a specific negotiation. By the fifteenth century this intermittent diplomacy had been replaced in the relations of certain of the Italian States by the institution of a permanent diplomatic ambassador in the capital of the receiving State, and the practice of exchanging ambassadors, complete with staff and embassy premises, is now a normal (albeit not compulsory ) feature of relations between states. Consular and Diplomatic institutions can be found the origins of the subsequent and more complex institutions.

Although embryonic forms of international organizations have been present throughout recorded history, for instance, in the form of the so called amphictyonic councils of ancient Greece, the late-medieval Hanseatic League or such precursors as the Swiss Confederation and the United Provinces of the Netherlands, it was not until the nineteenth century that .international organizations as we know them today were first established. Moreover, it was not until the nineteenth century that the international system of states (at least within Europe) had become sufficiently stable to allow those states to seek forms of cooperation.

Situations soon arose in which the essentially bilateral relationships established by diplomatic embassies or missions were inadequate. For example, a problem would arise which concerned not two but many States, and whether what was proposed was a series of negotiations or even a formal treaty, there had to be found a means for representing the interests of all the states concerned.

The means was the international conference, a gathering of representatives from several states; simply diplomacy writ large. The peace of Westphalia in 1648 emanated from such a conference, as did the settlement after the Napoleonic wars in 1815 through the congress of Vienna and, even later, the post-1918 settlement negotiated at the Paris conference of 1919 and embodied in the Treaty of Versailles. After the watershed Westphalian peace of 1648, international so-called congresses’ had become a regular mode of diplomacy: whenever a problem arose, a conference was convened to discuss it and, if possible at all takes steps towards a solution. After the defeat of Napoleon, a new development took place.

The Congress of Vienna of 1815 had seen the initiation of the “concert system” which, for the purposes of any study of international organization, constituted a significant development. As sponsored by the Czar Alexander I, what was envisaged was an alliance of the victorious powers pledged to conduct diplomacy according to ethical standards, which would convene at congresses held at regular intervals. In fact, four congresses were held between 1818 and 1822 - at Aix-la-Chappelle (1818), at Troppau and Laibach (1820, 1821), and at Verona (1822) - but the idea of regular congresses was later abandoned and meetings took place as occasion required. The attempt to secure regular meetings was, however, a significant recognition that the “Pace” of international relations demanded some institutions for regular multilateral negotiations.

Moreover, the Congress of Vienna (1815) and its aftermath launched some other novelties as well, the most remarkable of which was perhaps the creation of a supranational military force under the command of Wellington.

Clearly, any general post war settlement demanded a more general participation in the negations than could easily be achieved via the traditional methods of diplomatic intercourse. Bilateral negation also proved inadequate for other problems of a general nature. The congress of Berlin of 1871 was convened to consider the Russian repudiation of the regime for the Black Sea which had earlier been established at the Paris Conference of 1856; conferences met in Berlin in 1884 and 1885 to attempt to regulate the “Scramble for Africa” which led to commercial rivalry and political antagonism between the European powers. The Hague Conferences of 1899 and 1907 were an effort to secure, on a multilateral basis, agreement on different aspects of the law relating to the conduct of warfare on land and on the sea, and on the duties of neutral states.

The peace conferences of The Hague had given the small sates a taste for international activism: in particular the 1970 conference approached universal participation, with forty-four states being represented. Moreover, due in part to its near-universal participation, organizational experiments took place, one of them being that recommendations (so-called ‘voeux’) of the conference were passed by a majority vote, instead of unanimity.

The “concert of Europe” remained a quasi- institutionalized system even after the Holy Alliance had broken up, until the First World War destroyed the balance of power on which it rested (or rather confirmed its demise); the London conferences of 1912-13, at the end of the Balkan Wars, were the last conferences or congresses convened within the framework of the “concert system.” The conclusion of a conference would normally be accompanied by a formal treaty or convention, or, where no such binding agreement was desired or obtainable, by a memorandum or minutes of the conference.

The disadvantages of this system of ad hoc conferences were, first, that for each new problem which arose a new conference had to be convened, generally upon the initiative of one of the states concerned. The necessity of convening each conference anew complicated and delayed international co-operation in dealing with the problem. Second, the conferences were not debating forms in the same way as the later assemblies of the League and the United Nations; delegations attended very much for the purposes of delivering statements of State policy and, though concessions were often made, the conferences had a rigidity which disappeared in the later ”Permanent” assemblies of the League and the United Nations. Third, the conferences were held by invitation of the sponsoring or host state; there was no principle of membership which conferred an automatic right to representation. Fourth, the conferences adhered to the strict rule of state equality, with the consequence that all states had an equal vote and all decisions required unanimity. As will presently be shown, there are matters in which it is necessary to subjugate the will of the minority to that of the majority if progress is to be made, and the unanimity rule represented a serious restriction on the powers of the ad hoc conference.

It might also be said to be a disadvantage of the conference system that, as a political body, the conference was not ideally suited to the determination of legal questions. There were many cases in which the issues before a conference, although of a primarily political character, involved questions of law, of the rights or duties of the states under international law. The Paris conference of 1856 and the Berlin Conference of 1871, in dealing with the regime in the Black Sea, dealt very largely with legal issues. However, it must be remembered that there existed side by side with the conference system the traditional means of solving legal disputes, by mediation, conciliation or arbitration although there was in this field, as in the field of political settlement, an  equal need  for the creation of some permanent machinery. It is also unlikely that a rigid separation between” Political” and “legal” questions can ever be achieved so as to allocate the latter exclusively to judicial tribunals; politics are rarely “pure” and political matters do not cease to be such because they involve legal rights.

However inadequate the system of ad hoc conferences was for the solution of the political problems arising from international intercourse, it was even more inadequate for the regulation of the relations between groups of people in different countries arising from their common interests. The nineteenth century saw, therefore, an impassive development of associations or unions, international in character, between groups other than governments. This was followed by similar developments between governments themselves in the administrative rather than the political field.

The private International unions or associations sprang from the realization by non-governmental bodies, whether private individuals or corporate associations, that their interests had an international character which demanded the furtherance of those interests via a permanent international association with like bodies in other countries. In those fields where co-operation between governments became imperative, there developed the public international unions; these were, in fact, an essay into international organization in the administrative sphere. The transition from private to public organizations was gradual, and no generally accepted definition of the public international union has over been reached^. in general. However, they were permanent associations of governments or administrations based upon a treaty of a multilateral rather than a bilateral type and with some definite criterion of purpose.

Finally, the nineteenth century saw the creation of such intuitions as the Rhine Commission, in order to deal with issues of navigation, or issues of pollution, on a regular basis. Following the establishment of the Rhine Commission in 1915, a number of other river commissions were established -managing the Elbe (1821), the Douro (1835) the Po (1849) - and, after the end of the Crimean War, the European Commission for the Danube in 1856. At roughly the same time, organizations started to be established by private citizens, in order to deal with international issues. Thus, in 1840, the world Anti-Slavery Convention was established, and in 1863 a Swiss philanthropist, Henry Dunant, Created the Red Cross.

The rise of modern organizations

It became clear that in many areas, international cooperation was not only required, but also possible. True enough, states were sovereign and powerful, but, as the river commissions showed, they could sometimes sacrifice some of there sovereign prerogatives in order to facilitate the management of common problems.

The most obvious area in which international cooperation may be required is perhaps that of transport and communication as indicated by the creation of those river commissions. Regulation of other modes of transport and communication quickly followed: in 1865 the international Telegraphic Union was established, followed in 1874 by the universal postal Union and in 1890 by the international Union of Railway Freight Transportation.

Still other areas did not lag considerably behind: in 1903 the International  Office of Public Health was created, and in the field of economics the establishment of the Metric Union (1875), the International Copyright Union (1886), the International Sugar Union (1902 ) and the International Institute for Agriculture (1905) may be mentioned as early forerunners of present-day international organization. Indeed, some of these are still in existence, albeit under a different name and on the basis of a different constituent treaty: there runs a direct connection, for example, from the early international institute for Agriculture to today’s FAO. Slowly but surely, more and more international organizations became established, so much so that public international law gradually transformed (or is said to be gradually transforming) from a law of co-existence to a law of cooperation. Many of the substantive fields of public international law are no loner geared merely to delimiting the spheres of influence of the various states, but are rather geared towards establishing more or less permanent mechanisms for cooperation. Around the turn of the twentieth century it appeared indeed to be common knowledge that the organization of interstate cooperation had become well accepted in international law.

The major breakthrough for international organization however, would be the year 1919 and the Versailles peace Settlement which followed the First World War. On 8 January 1918, US president Woodrow Wilson made his famous ‘fourteen points’ Speech, in which he called for the creation of a “general association of nations.  Under specific covenants for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small states alike.

Wilson’s plea was carried on the waves of public opium in many states and would lead to the formation of the League of Nations. And not only that: the international Labor Organization was also established at the 1919 peace Conference.

The League of Nations was the first international organization which was designed not just to organization operation between sates in areas which some have referred to as ‘low politics’, such as transport and communication, or the more mundane aspects of economic co-operation as exemplified by the Metric Union, but to have as its specific aims to guarantee peace and the establishment of a system of collective security, following which an attack against one of the member-states of the League would give the rest the right to come to the attacked state’s  rescue.

The League failed in its own overriding purpose: preventing war. On the ruins of the Second World War the urge to organize was given a new impetus. As early as August 1941, American president Roosevelt and British Prime Minister Churchill had conceded the Atlantic Charter, a declaration of principles which would serve as the basis, first, for a declaration of the wartime allies, and later, after the State Department had overcome President Roosevelt’s initial reluctance to commit himself to the creation of a post-War organization, for the Charter of the United Nations^.

Also during the war, in 1944, the future of economic cooperation was mapped in Bretton Woods, where agreement was reached on the need to cooperate on monetary and trade issues, eventually leading to the creation of the international monetary Fund and the General Agreement on tariffs and Trade, among others.

The resurrection of the largest battlefield of the Second World War, Europe, also came accompanied by the rise of a number of organizations. The Council of Europe was a first attempt, born out of Churchill’s avowed desire to create the United States of Europe, so that Europe could become an important power alongside the US and the UK. To channel the American Marshall aid, the Organization for European Economic co-operation was created (In 1960 transformed into the Organization for Economic co-operation and Development),  and a relatively small number of European states started a unique experiment when, in 1951, they created the supranational European Coal and Steel Community, some years later followed by the European economic Community and the European community For atomic Energy, all three of which have now been subsumed into the European Union. The northern and western states that remained outside would later create an alternative in the form of the European Free Trade Area, while the state-run economies of the east replied with the creation of the council for mutual Economic Assistance (usually referred to as Comecon).

The influence of the Cold War also made it felt through military cooperation in Europe. Western Europe saw the creation of the Pact of Brussels (which later became the Western European Union) and the North Atlantic treaty Organization. Eastern Europe saw the creation of the Warsaw Pact, while east and west would meet, from the 1970s on wards, within the framework of the conference on security and cooperation in Europe (CSCE), which in 1995 changed its name to reflect its increased organization structure into organization for security and co-operation in Europe (OSCE).

Moreover, elsewhere too organizations mushroomed. On the American continent, the early Pan-American Conference was recreated so as to be come the Organization of American States. In addition, there are more localized organizations such as Caricom and Mercosur.

In Africa, the wave of independence of the 1950s and early 1960s made possible the establishment of the organization of African Unity in 1963, with later such regional organizations as Ecocas (in central Africa) and Ecowas (western Africa) being added. In Asia, some states assembled in Asean, for their security, Australia and New Zealand joined the US in Anzus. A relaxed form of cooperation in the Pacific Rim area, moreover, is channeled through Asia-Pacific Economic Co-operation (APEC).

In short, there is not a part of the globe which is not covered by the work of some international organization or other; there is hardly a human activity which is not, to some extent, governed by the work of an international organization. Even academic research is at the heart of the work of some organizations, most notably perhaps the International Council for the exploration of the sea (ICES) , originally set up as scientist’s club, having Fridtjof  Nansen as one of its founders, but later ‘internationalized^’,

Perhaps the most difficult question to answers, which, in some ways is a preliminary question, is: what exactly is an international organization? The short answer is, quite simply, that we do not know. We may, in most cases, be able to recognize an international organization when we see one, but it has so far appeared impossible to actually define such organizations in a comprehensive way.

It is common in the literature to delimit international organizations in at least some ways. One delimitation often made depends on the nature of the body of law governing the activities of the organization. If those activities are governed by international law, we speak of an international organization proper, or at least of an intergovernmental organization. If those activities are, however, governed by some domestic law, we usually say that the organization in question is a non-governmental organization; examples include such entities as Greenpeace or Amnesty International. While the activities of such entities may be international in character and they may even have been given some tasks under international law, they do not meet the usual understanding of what constitutes an international organization.

An international organization has been defined “as a forum of co-operation of sovereign states based on multilateral international organizations and comprising of a relatively stable range of participants, the fundamental feature of which is the existence of permanent organs with definite competences and powers acting for the carrying out of common aims.

In the widest sense, international organization can be defined as “a process of organizing the growing complexity of international relations; international organizations are the institutions which represent the phase of that process. They are the expressions of and contributors to the process of international organization, as well as, the significant factors in contemporary world affairs.” Further” international organizations, as institutions may come  and go in accordance with the significance of the dynamism of international  relations. But international organization, the process, exists as an established trend. It was   the stimulus of the existing process ready   at hand  that automatically led, after the collapse of the League of Nations, to the creation of new organizations like the U.N. Thus, international organization is the process by which states establish and develop format and continuing institutional structures for the conduct of certain aspects of their relationships with each other. It represents a reaction to the extreme decentralization of the traditional system of international relations and the constantly increasing complexities of the interdependence of states’’

Following are the essentials of international organization, the institution:

I.  Its origin is based on multilateral international agreement.

II.  The institution has a personality of its own, which is distinct from that of its individual members

III.  It has permanent organs which carry out common aims.

As compared to the will of all members, its organs exhibit autonomy of will.

For the international lawyer, it goes without saying that the activities of those organizations that are subject to international law will be of most interest. Usually, those organizations will have a number of characteristics in common although, in conformity with the fact that their founding fathers are relatively free to establish whatever they wish, those characteristics are not more than characteristics. The fact that they do not always hold true does not, as such, deny their value in general.

One of those characteristics is that international organizations are usually created between states, or rather, as states themselves are abstractions, by duly authorized representatives of states^. This, however, doesn’t tell the whole story. For one thing, there are international organizations which are themselves members of another international organization and sometimes even founding members. The EC, thus, is a member of the FAO, and a founding member of the WTO. Still, we do not exclude the WTO and the FAO from the scope of international organizations simply because they count another organization among their members. Generally, then, it is not a hard and fast rule that international organizations can only be created by states.

Secondly, not all such organizations created by states are generally considered international organizations. States may, for example establish a legal person under some domestic legal system. Perhaps an example is the Basle-Milhouse Air-port authority, a joint venture, between France and Switzerland and governed French law.

Moreover, sometimes treaties are to be implemented with the help of one or more organs. For instance, the European Court of Human Rights is entrusted with supervising the implementation of the European Convention on Human rights. Yet, the Court is not considered to be an international organization in its own right; it is, instead, often referred to as a treaty organ.

In what exactly the distinction between an organization and treaty organ resides is unclear, and perhaps it may be argued that its importance is diminishing at any rate: scholars writing in the field of, for example environmental law, have more or less started to unite the two forms of cooperation, and use the rather generic term of “international intuitions”, as encompassing both treaty organs and international organizations. Others have pointed out that treaty organs endowed with  decision- making powers may well be international organizations in disguise,  and , in the political science literature, reference is often made to ‘international regimes’  or, again, ‘institutions’.

A second characteristic which many organizations (but again, not all) have in common is that they are established by means of a treaty, their creation was not brought about by some legal act under some domestic legal system, but was done in the form of a treaty, which international law in general terms defines as a written agreement, governed by international law. And as the treaty will be governed by international law, so too will the organization.

Not all organizations derive directly from a treaty, though. Some have been created not by treaty, but by the legal act of an already existing organization. The united Nations general Assembly, for instance has created several organizations by resolution: the united Nations industrial Development organization (UNIDO) and the United Nations children’s fund (UNICEF) come to mind, as do various institutions set up by the Nordic Council, including financial institutions such as the Nordic Investment Bank.  Indeed, the Nordic Council itself originated as a form of cooperation between the parliaments of the five sates concerned (Denmark, Finland, Iceland, Norway and Sweden), rather than being clearly treaty-based. The importance of this characteristic, then is above all to indicate that the creation of an international organizations is an intentional act. Organizations rest upon conscious decisions of the states involved; they do not come out of the blue, and are not created by accident.

That said, a describable recent tendency is to remain nebulous about intentions when creating international institutions. In recent years, organizations such as the organization for security and Co-operation in Europe (OSCE), Asia- pacific Economic Co-operation (APEC), the Arctic Council and the Wassenaar Arrangement have been established, but with all of them it remains unclear whether they indeed are to be regarded as full-blown organizations rater than, say, frameworks for occasional diplomacy, and even whether their constituent agreements constitute treaties or not. The legal status and structure of the European Union have, likewise, been subject to debate, and the G-7(or -8; the confusion is telling in itself) defies any attempt at a definition and classification.

In order to distinguish the international organization from other forms of international cooperation, another often-mentioned characteristic holds that the organization must posses at least one organ which has a will distinct from the will of its member states. Where the collectivity merely expresses the aggregate opinion of its members, giving it the legal form of an international organization would, in the extreme, be a useless act. One might as well have appointed a spokesperson.

Important though the characteristic of a ‘distinct will’ is, it is also the most difficult in terms of both practice and theory .As several authorities have noted, in practice not all organizations usually referred to as international organizations possess this characteristic. In heretical terms, the characteristic of the distinct will goes to the heart of the entire concept of international organization: the problematic relationship between the organization and its member states.

In one way, an international organization is little more than the tool in the hands of the member states, and viewed from this perspective, the distinct will of the organization is little more than a legal fiction. Yet, the international organization, in order to justify its raison d'être and is somewhat special status international law, must insist on having such a distinct will. For, otherwise, it becomes indistinguishable from other forms of cooperate, and if so, it will become extremely difficult to justify why, for example, the constituent treaties of organizations warrant teleological interpretation, as is so often claimed, or why such constituent treaties appear to possess far greater possibilities for deriving implied clauses (in the form of implied powers) from them than regular treaties are said to do.

Laws are categorized into legal systems. What are the major legal systems? Under this part, we will be discussing the criterion employed to distinguish between the common and civil law legal systems, first. In so doing we will define the concept of legal system itself. Further, we will consider the general characteristics of common law and civil law legal systems respectively.

LEGAL SYSTEM

How could one classify laws? What points should be employed as criteria to categorize laws?

Legal system is defined by Hart, as that it includes a fundamental rule for the identification of the other rules of system [Paton; 1967: 76].

[Rene David and John E. C. Brierley, Major Legal Systems in the World today An Introduction to the Comparative Study of Law, Pp. 19-20]

The grouping of laws into families, thereby establishing a limited number of types, simplifies the presentation and facilitates an understanding of the world’s contemporary laws. There is no, however, agreement as to which element should be considered in setting up these groups and, therefore, what different families should be recognized. Some writers base their classification on the law’s conceptual structure of on the theory of sources of the law; others are of the view that these are technical differences of secondary importance, and emphasize as a more significant criterion other the social objectives to be achieved with the help of the legal system or the place of law itself within the social order.

From the technical standpoint, it is advisable to ask whether someone educated in the study and practice of one law will then be capable, without much difficulty, of handling another. If not, it may be concluded that the two laws do not belong to the same family; this may be so because of differences in the vocabularies of the two laws (they do not express the same concepts), because the hierarchy of sources and the methods of each law differ to a considerable degree. This first criterion, no matter how essential, is nevertheless insufficient, and it should be complemented by the second consideration. Two laws cannot be considered as belonging to the same family, even though they employ the same concepts and techniques, if they are founded on opposed philosophical, political or economic principles, and if they seek to achieve two entirely different types of society. The two criteria must be used cumulatively, not separately.

THE ANGLO-AMERICAN LEGAL SYSTEM (COMMON LAW)

[Rene David and John E. C. Brierley, Major Legal Systems in the World Today An Introduction to the Comparative Study of Law, Pp. 23-4]

A first family of law is that of the Common law, including the law of England and those laws modelled on English law. The Common law, altogether different in its characteristics from the Romano-Germanic family, was formed primarily by judges who has to resolve individual disputes. Today it still bears striking traces of its origins. The common law legal rule is one, which seeks to provide the solution to a trial rather than to formulate a general rule of conduct for the future. It is, then much less abstract than the characteristic legal rule of the Romano-Germanic family. Matters relating to the administration of justice, procedure, evidence and execution of judicial decisions have, for common law lawyers, an importance equal, or even superior, to substantive rules of law because historically their immediate preoccupation has been to re-establish peace rather than articulate a moral basis for the social order. United States of America and Canada belong to this legal system.

THE CIVIL LAW LEGAL SYSTEM [Yannopoulos; 24]

The meaning of the words “civil law” has not been the same in all historical periods in the framework of early and classical Roman law, jus civile was the law governing the relations of Roman citizens. In that regard, it was contrasted the jus gentium and the jus naturale. From a different point of view, the jus civil was contrasted to the jus honorarium and to the jus publicum. In the middle ages and up to the era or “reception” the term civil law referred mostly to the Justinian legislation and the accumulated doctrine of the commentators; it was contrasted to the cannon law.

In modern times the term civil law refers to those legal systems which, especially in their methodology and terminology, were shaped decisively by the Roman law scholars from middle ages to the nineteenth century.  Germany, French, and Italy are the forerunners of civil law legal system.

COMMON LAW AND CIVIL LAW LEGAL SYSTEMS COMPARED

[Taken from Comparative Legal Systems- MSN Encarta, 12/5/2006]The best way to explain the main elements of the civil and the common law families and to compare and contrast the two is to subdivide them further into the following features

1) Beginnings The common law was conceived in 1066 and born of union between older Saxon law and the custom of the Norman conquerors. The civil law was older than the common law is now.

2) Nurture The common law was nurtured in London law courts by judges and barristers. The older Roman Law was developed to an important extent by jurists, who were not practising lawyers but public-minded citizens. It was they who strive to expound, explain, and adapt the ancient and sporadic legislation and the edicts of the officials; the high point of their contribution occurred in the decades around AD 200.

3) Spread The common law spread only by conquest and colonization: no one ever accepted it freely. The Roman part of the civil law, preserved in the collection of Justinian of AD 533, was rediscovered in the 11th century, embraced by the university law schools of northern Italy, and spread from them throughout continental Europe. From there like the common law it went to the New World and the parts of Africa by colonization. In addition, however, especially in the 19th century, the French and then the German versions were freely selected as models by countries in the Middle and Far East.

4) Language Although originally written in Latin and spoken in Norman French, the language of the common law today is virtually exclusively English. In most civil law systems the terminology is likely to be wholly in the local language.

5) Makers The main creators of the common law are the judiciary: that is to say the matrix, the basic operation system, is laid down by case law. While deciding cases, judges lay down the law. In civil-law systems, at least until very recently, judges played the comparatively minor role of settling the dispute in front of them. They did not make the rules of the system, and their decisions are not cited in later cases.

6) Legislation The modern countries of both systems of laws produce large amounts of legislation. However, that of the common-law countries tends to be piecemeal. Save for the constitution, and fiscal matters, basic principles are not enacted (except as codifications of existing case law in such statutes as the partnership Act). The typical statute merely adjusts some detail of the rules laid down by the courts. In complete contrast, modern civil-law systems tend to think of themselves as codified. The word code in this context means that a whole area of law so laid down in one legislative document, with the aim of providing a closed, coherent, and consistent set of propositions that, if used in good faith, can be applied to solve any dispute in that area. The most obvious example is that of a criminal code.

7) Precedent in civil law legal system, decisions in individual cases and the opinions handed down by courts in particular lawsuits never have the force of law; they cannot be extended to other cases or to other people (Article 2). This approach is fortified by the historical fact that civil-law judges did not see their job as creating law, the professional fact that they are career civil servants, and the political fact that it is thought more democratic to entrust lawmaking to the elected representative of the people.

Common-law perceptions are quite different. Historically, judges made the law. Furthermore, to this day the legislator in common-law countries does not lay down the basic rules of the legal system. However, they are needed, and so a notion of precedent comes into being. For instance, the English Parliament has never defined murder, has never laid down that contracts must be kept, or that a person must pay compensation for damage unlawfully caused to others, since such definitions and rules are necessary, courts and lawyers can find them only in earlier case law. As it would be absurd and unfair if judges could remake the basic law of murder or of contract in any case before them, a rule of precedent binds them to the law as declared by higher courts in their jurisdiction. The doctrine of precedent is an operational rule of a common-law system.

8) Fact: The judges who built up the common law system were few in number, and left the hard work of fact-finding to laypeople: that is, the jury. Originally made up of neighbours who might be thought to know the background, and then of disinterested strangers empowered to hear the evidence and decide. Nowadays only the United States makes much use of the jury for non- criminal matters (as required by the seventh Amendment).

The civil-law systems, by contrast, have always left the task of finding the facts to a professional judge. This has a number of consequences. First, there were always far more judges in civil-than in common-law countries. Second, the judge could be given more control from the outset of the dispute in deciding which witnesses to call and which questions to put to them. Third, the procedure could be more sporadic, spread over a number of sessions, and reduced to writing. Fourth, the rules of evidence can be flexible, since a professional judge is presumed capable of accurately assessing testimony. Finally, it is easier for a higher court to correct or reverse a decision.

9) Structure: One result of the above features is that in common-law countries the legal system is not organized in a coherent and clear structure. Its development tends to be incremental and pragmatic, and it is not easy for the civil lawyer to approach. Civil lawyers lay great emphasis on system and structure. Furthermore, they tend to follow similar patterns in their organization of legal topics, and once these are understood it is relatively simple to locate the law on any given topic.

Why we need law? What functions does law have in your localities? As the issue of definition of law, there is no agreement among scholars as to the functions of law. Jurists have expressed different views about the purpose and function of law. It is well known that law is a dynamic concept, which keeps on changing with time and place. It must change with changes in the society. Law, in the modern sense, is considered not as an end in itself, but is a means to an end. The end is securing of social justice. Almost all theorists agree that law is an instrument of securing justice. As Salmond rightly pointed out, “law is a body of principles recognized and applied by the State in the administration of justice.”  Even Hobbes and Locke recognised the positive role of law when they said, “the end of law is not to abolish or restrain but to preserve or enlarge freedom and liberty.” For Kant, the aim of law is the adjustment of one’s freedom to those of other members of the community. Bentham gave a very practical version of the purpose of law, which according to him, is maximization of the happiness of the greatest number of the members of the community.

According to Holland, the function of law is to ensure the well-being of the society. Thus it is something more than an institution for the protection of individuals’ rights.

Roscoe Pound attributed four major functions of law, namely: (1) maintenance of law and order in society; (2) to maintain status quo in society; (3) to ensure maximum freedom of individuals; and (4) to satisfy the basic needs of the people. He treats law as a species of social engineering.

The Realist view about the purpose and function of law is that for the pursuit of highest good of the individuals and the state as such controlling agency.

The object of law is to ensure justice. The justice may be either distributive or corrective. Distributive justice seeks to ensure fair distribution of social benefits and burden among the members of the community. Corrective justice, on the other hand, seeks to remedy the wrong. Thus if a person wrongfully takes possession of another’s property, the court shall direct the former to restore it to the latter. This is corrective justice. Rule of law is sine qua non for even-handed dispensation of justice. It implies that every one is equal before law and law extends equal protection to everyone; judges should impart justice without fear or favour and like cases should be treated alike.

It must, however, be stated that justice alone is not the only goal of law. The notion of law represents a basic conflict between two different needs, namely, the need for uniformity and the need for flexibility. Uniformity is needed to provide certainty and predictability. That is, where laws are fixed and generalized, the citizen can plan his/her activities with a measure of certainty and predict the legal consequence of his/her conducts. This is even more necessary in case of certain laws, notably, the law of contract or property. Uniformity and certainty of rules of law also bring stability and security in the social order.

Today the following are taken as important functions of law.

A)    Social control – members of the society may have different social values, various behaviours and interests. It is important to control those behaviours and to inculcate socially acceptable social norms among the members of the society. There are informal and formal social controls. Law is one of the forms of formal social controls. As to Roscoe Pound, law is a highly specialized form of social control in developed politically organized society. Lawrence M. Freedman explains the following two ways in which law plays important role in social control:
first, law clearly specifies rules and norms that are essential for the society and punishes deviant behaviour. “Secondly, the legal system carries out many rules of social control. Police arrest burglars, prosecutors prosecute them, courts sentence them, prison guards watch them, and parole broads release them [Steven; 2003: 19]

B) Dispute settlement

Disputes are un avoidable in the life of society and it is the role of the law to settle disputes. Thus, disagreements that are justiceable will be resolved by law in court or out of court using alternative dispute settlement mechanisms [Steven; 2003: 20].

C) Social change

A number of scholars agree about the role of law in modern society as instrument to social change. Law enables us to have purposive, planned, and directed social change [Steven; 2003: 20-21]. Flexibility of law provides some measure of discretion in law to make it adaptable to social conditions. If law is rigid and unalterable, it may not respond to changes spontaneously which may lead to resentment and dissatisfaction among the subjects and may even result into violence or revolution. Therefore, some amount of flexibility is inevitable in law [Biset; 2006].

RELATIONSHIP BETWEEN LAW AND STATE

What relationship do you envisage between law and state? [A note taken from Paton; 1967: 301-311]

There are three main legal theories with regard to the relationship between law and state. They are: the state is superior to and creates law; law precedes the state and binds it when it comes into existence; law and the state are the same thing looked at from different points of view.

Austin explains that state is superior to and creates law when he defines law as the command of the sovereign. According to Austin, there must be a political society of ‘considerable’ numbers, and a superior in that society who is habitually obeyed by the bulk of the members of that community. Within this community, the superior has a sovereign power to lay down the law. Collectively considered, the sovereign is above the law, but a member of the legislature is individually bound by the law.  Do you agree with this proposition? Reason out

The theory of sovereignty has been of service as a formal theory, but some writers go farther and seek to justify sovereignty as a moral necessity instead of as a convenient hypothesis. For example, Hegelianism treats the state as a supreme moral end being a value in itself; it is not bound by the rules of ethics that apply to individual person. This theory ‘grants to state absolutism the virtue of moral truth’. ‘The state is the divine idea as it exists on earth’. Do you share this idea?

This theory has been carried farther by the Naizi and Fascist conceptions, which regard law as but the will of the Leader. These doctrines treat law as an instrument of executive action, not as a check upon it: law is a weapon to achieve the ends of state policy, not a chain to hamper the executive.

According to the second theory, law may bind the State. The sovereign has absolute power over positive law, but is bound by ius naturale. Ihering considered that law in the full sense was achieved only when it bound both ruler and ruled. Ihering regards state as the maker of law and he argues that law is the intelligent policy of power, and it is easier to govern if the state voluntarily submits to the law it has created. Then, Jellinek develops this doctrine into a theory of auto limitation-the State is the creator of law, but voluntarily submits to it.

However, Krabbe and Duguit deny that the State creates law. Once we postulate that law is created by a source other than the State, it is easy to see how the State can be bound. According to Krabbe, the source of law is the subjective sense of right in the community. He asserts that any statute, which is opposed to the majority sense of right, is not law. The legislature, executive, and the judiciary are subordinate instruments through which the community expresses its sense of values.

How can a sense of right be effective unless persons are willing to put their wills at the service of the ends they desire?

What is the gist of the third theory on the relationships between law and state?

Kelsen illustrates the third type of theory that law and the state are really the same. The state is only the legal order looked at from another point of view. When we think of the abstract rules, we speak of the law: when we consider the institutions, which create those rules, we speak of the State. However, the practical importance of Kelesen’s approach is that he emphasizes that law is a more fundamental notion than that of the State. While it is true that law cannot exist without a legal order that order may take forms other than that of the state. Hence, the theory is wider, and therefore more acceptable, than that of Austin. A legal order may be created in the international sphere even though no super state is set up.

What is state? The normal marks of a state are a fixed territory, population, and competence to rule which is not derived from another state. Kantorowicz, defines the state as a juristic person endowed with the right to impose its will on the inhabitants of a given territory, of which right it cannot by law be deprived without its own consent.

It may be argued that the law being an instrument of the state is created and established along with it. No state has ever been without system of law, however crude it may have been. In like manner, system of law has been without a state defining either directly (i.e., through enactments) or indirectly (through recognition) the law is and assuring its validity and guarantying its endowment through the special machinery at the disposal of the state only. That is why law is generally defined as a set of general statements aimed at regulating choices in possible human behaviour that is defined or recognized, published and sanctioned warded by the state.

The definition of law in terms of the State possesses some advantages. It gives a clear-cut and simple test. It supplies an easy manner to show a conflict between various juridical orders for example between Church and State. If only the State can provide positive law, then the Church can have only such legal rules the state grants it. It gives an easy answer to the problem of validity of law, since law is valid for the simple reason that it has been laid down by the sovereign. It is easy to mark the moment when primitive rules become law, for we have only to ask whether there is a determinate sovereign body that has issued a command.

DIFFERENCE BETWEEN LEGAL NORMS AND NON-LEGAL NORMS

According to Black’s Law Dictionary [2004: 1086], norm is “a model or standard accepted (voluntarily or involuntarily) by society or other large group, against which society judges someone or something”. Thus, norm connotes a standard that is accepted by society voluntarily or in voluntarily. The society can judge someone or something against the norm. For example, the standard to determine a given behaviour as right or wrong is norm.

We have seen that one of the natures of law is that it is a norm. The general statement of a legal norm is not a mere rendition. In fact, all social norms differ from the mere resumption of a philosopher or a doctor, etc. True such propositions made by philosophers and medical doctors may be useful addresses; but nobody is bound to follow them. In contrary, legal norms are binding. In fact, the essence of the legal norms is that members of the society are bound to behave in accordance with the law. That is why we usually refer to statements about what will happen to an addressee who behave in accordance with the law attached to the general statements. These are what we call sanctions. Sanctions answer the question: How does the community or group in case the norms are not obeyed? What are the guarantees to ensure that the norm will be adhered to?  Sanctions are various types but their common objective is to form norm and to follow the prescribed norms. Even permissive norms are protected by sanctions; though in their case the sanction is addressed to the person permitted to do the thing but to the rest of the world commanding everybody else not to interfere with the rights of the person so entitled.

To summarize, normativity means the choice, which the rule presents with respect to the described human behaviour; the mandatory character of the norm as well as the possibility of enforcing the norm where it is ignored. Of course, law is not only social norm that has this character of normativity. Essentially, all kinds of social norms have it because it is only this character of normativity that converts any general statement into a norm. Hence, in as far as this character of normativity is concerned, legal norms differ from the other social norms mainly by the number of persons they address themselves to and by the nature of the sanctions they apply. Every legal norm is formally structured; and the three formal elements of a norm’s structure are the premise (hypothesis), the disposition and the sanction. The premise describes the social circumstances or the situations or events, which are the background for the social behaviour that the norm has in mind, and this includes a description of the addressees themselves. The dispositive element describes the kind of human behaviour envisaged and preferred by the norm as well as the choice that norm makes in this respect. It is said that it is this element that contains the essence of the norm. The sanction is that part of the norm that describes what will happen if the norm is disobeyed.

However, note should be made of the fact that we do not find all the three formal structural elements in one formulation of a single legal norm (i.e., one paragraph, one article, etc.). Often also we see that provisions of criminal code only embody half of the dispositive element and the sanction alone, leaving the rest for inference. It therefore means that complete comprehension of a single norm implies the linking together of various provisions of the law that often belong to different branches of the legal system. That is why it is said that it is always necessary to have a comprehensive understanding of the whole legal system in order to correctly apply even one norm.

We can observe that law is a set of norms regulating, in a general and binding manner, the general behaviour of person, there by organizing, protecting and develop certain social relations. Do you agree with this? Why or why not?

Both legal and non-legal norms are normatives, that means both need to create and develop human behaviours.

Non-legal norms have been inexistent before state is created while legal norms have come into existence with the coming into being of state. Thus, societies have been used to be regulated by non-legal norms fo0r example, at the time of communal society. But legal norms were gradually emerged.

What are the relations between legal and non-legal norms?

What is the distinction between law and ethics? Law tends to prescribe what is considered necessary for the given time and place. Ethics concentrates on the individual rather than upon society; law is concerned with the social relationships of the society rather than the individual excellence of their characters and conduct. Ethics must consider the motive for action as all-important; whereas law is concerned mainly with requiring conduct to comply with certain standards, and it is not usually concerned with the motives of persons. It is too narrow, however, to say that ethics deals only with the individual, or that ethics treats only of the ‘interior’ and law only of the ‘exterior’, for ethics in judging acts must consider the consequences that flow from them and it is not possible to analyse the ethical duties of person without considering his/her obligations to his/her fellows or his/her place in society. It is  equally misleading to concentrate upon those aspects of the law which are concerned directly with conduct and with ‘exterior’ factors in person’s social relations, to the exclusion of those which, explicitly or implicitly, are aimed at intention, motive and the ends which persons seek[What is Law: 33-7].

Law, in elaborating its standards, must not try to enforce the good life as such; it must always balance the benefits to be secured by obedience with the harm that the crude instrument of compulsion may do. There are many ethical rules the value of the observance of which lies in the voluntary choice of those who attempt to follow them. Nevertheless, there are other rules, which it is essential for law to enforce for the well-being of the community. Ethics thus perfects the law. In marriage, so long as love persists, there is little need of law to rule the relations of husband and wife-but the solicitor comes in through the door, as love flies out the window. Law thus lays down only those standards, which are considered essential, whatever be the motive of compliance. In one sense law may be a ‘minimum ethic’, but frequently law has to solve disputes  on which the rules of ethics throw very little light-where two persons, neither guilty of negligence, have suffered by the fraud of a third, who is to bear the loss? Ethics may suggest that the loss should be equally divided, but this is not a very practical rule for the law that requires definite rules for the passing of title and the performance of contracts.

Law and ethics are also interconnected. What are today regarded as purely religious were once enforced by law; conversely, modern law will enforce many rules designed to save the individual from him/herself in a way that would have seemed absurd to a disciple of LAISSEZ-FAIRE. There is no immutable boundary to the area of the operation of law.

Another important difference between law and ethics is that a person is free to accept or reject the obligations of ethics, but legal duties are heteronymous, i.e., imposed on the individual without his/her consent. If a rule of ethics, which is in accord with positive morality, is broken, there may be the effective sanction of the pressure of public opinion, but ethical rules are in advance of the views of a particular community are imposed by no earthly force.

What is more, it has been suggested that law creates both duties and rights whereas ethics can create only duties. This, however, may easily become a mere matter of terminology. If Ayalew is under a duty to support his father, why cannot we say that the others have ethical right to be supported? This right will not, of course, be enforced merely because it is decreed by ethics, and nether will breach of the duty to be punished, but logically even in case of ethics it is hard to conceive of a duty unless there is a corresponding right.

Furthermore, ethics deals with the absolute ideal, but positive morality is made up of the actual standards, which are adopted in the life of any particular community. Positive morality therefore (like law), emphasizes on conduct rather than the state of mind; it is also similar to law in that it is imposed on the individual from without, for it has behind it the effective, if unorganized, sanction of public opinion. How many persons would rather break the law than wear the wrong tie with a dinner jacket? Here we see the sanction behind a mere rule of etiquette, and the fear of ridicule or social ostracism protects strongly the more important rules of positive morality.

In general, there are similarities and differences between law and morality. Their similarities, according to Hart [1986: 168], are:

1)      they are alike binding regardless of the consent of individual bound and supported by serious social pressure for conformity;

2)      compliance with both legal and moral obligation is considered as a minimum contribution to social life. This is because as we have already discussed compliance with legal norms enable the members of the sociality to live together. The same holds tree with respect to moral obligations.

3)      Both law and morals include rules that are essential for life in general even though they also include special rules applicable to special activities. Thus, the members of the society are required to comply with those rules to live to gather. Thus, prohibition to violence to person and property are found in both law and morals.

What are the differences between law and positive morality?

Various tests have been suggested to distinguish a rule of law from a mere dictate of positive morality. Firstly, a rule of law is imposed by the State; secondly, while there may be a sanction behind the rules of positive morality, it is not applied by organized machinery, nor is it determined in advance… Third, some argue that the content of law is different from that of social morality: but, while it is true that law, having a different object, covers a different scope, there is no immutable boundary to its operation. Law, positive morality, and ethics are overlapping circles, which can never entirely coincide, but the hand of person can move them and determine the content that is concerned to all or two or confined to one. Ethics condemns murder, because it is once accepted by both positive morality and law.

We do find a close relationship between the rules of law and rules of positive morality, for the latter determine the upper and lower limits of the effective operation of law. If the law lags behind popular standards it falls into disrepute; if the legal standards are too high, there are great difficulties of enforcement… The close relationship between law and the life of the community is shown by the historical school, and if we admit that positive morality influences law, it must be recognized that law in its turn plays a part in fixing the moral standards of the average person. Fourthly, it has been suggested that the method of expression should be used as a test-rules of positive morality lack precision, whereas rules of law are expressed in technical and precise language. There is much truth in this, but the distinction is only relative; for early law is fluid and vague, and some social usages may be expressed very precisely, for example, the modes of address of those bearing titles.

Theoretically, there may be some difficulty in determining the exact distinction between positive morality and law. In practice, however, the legal order provides machinery for the determination of difficult cases. If a sick relative, dependent on Ayalew for the needs of life, is so neglected by Ayalew that death results, is this a breach of a legal duty or merely an infringement of positive morality?

[Biset Beyene, Introductory Note on Law in General, 2006: 5-10]

Different legal theories developed throughout societies. Though there are a number of theories, only four of them are dealt with here under. They are Natural, Positive, Marxist, and Realist Law theories. You may deal other theories in detail in your course on jurisprudence.

NATURAL LAW THEORY

Natural law theory is the earliest of all theories. It was developed in Greece by philosophers like Heraclitus, Socrates, Plato, and Aristotle. It was then followed by other philosophers like Gairus, Cicero, Aquinas, Gratius, Hobbes, Lock, Rousseau, Kant and Hume. In their studies of the relation between nature and society, these philosophers have arrived at the conclusion that there are two types of law that govern social relations. One of them is made by person to control the relations within a society and so it may vary from society to society and also from time to tome within a society. The other one is that not made by person but controls all human beings of the world. Such laws do not vary from place to place and from time to time and even used to control or weigh the laws made by human beings. These philosophers named the laws made by human beings as positive laws and the laws do not made by human being as natural laws.

Natural law is given different names based on its characteristics. Some of them are law of reason, eternal law, rational law, and principles of natural justice.

Natural law is defined by Salmond as “the principles of natural justice if we use the term justice in its widest sense to include all forms of rightful actions.” Natural law theory has served different societies in many ways. The Romans used it to develop their laws as jus civile, laws governing roman citizens, and jus gentium, laws governing all their colonies and foreigners.

The Catholic Pope in Europe during the middle age become dictator due to the teachings of Thomas Aquinas that natural law is the law of God to the people and that the pope was the representative of God on earth to equally enforce them on the subjects and the kings. At the late of the Feudalism stage, Locke, Montesque and others taught that person is created free, equal and independent by taking the concept of Natural law as the individual right to life, liberty, and security. Similarly, Rousseau’s teachings of individual’s right to equality, life, liberty, and security were based on natural law. The English Revolution of 1888, the American Declaration of Independence and the French Revolution of 1789 were also results of the Natural law theory.

Despite its contribution, however, no scholar could provide the precise contents of the natural law. As a result, it was subjected to criticisms of scholars like John Austin who rejected this theory and latter developed the imperative called positive law theory.

POSITIVE LAW THEORY

Positive law theory is also called, imperative or analysts law theory. It refers to the law that is actually laid down by separating “is” from the law, which is “ought” to be. It has the belief that law is the rule made and enforced by the sovereign body of the state and there is no need to use reason, morality, or justice to determine the validity of law.

According to this theory, rules made by the sovereign are laws irrespective of any other considerations. These laws, therefore, vary from place to place and from time to time. The followers of this theory include Austin, Bentham and H.L.A Hart. For these philosophers and their followers law is a command of the sovereign to his/her subjects and there are three elements in it: command; sovereign; and sanction. Command is the rule given by the sovereign to the subjects or people under the rule of the sovereign. Sovereign refers to a person or a group of persons demanding obedience in the state. Sanction is the evil that follows violations of the rule.

This theory has criticized by scholars for defining law in relation to sovereignty or state because law is older than the state historically and this shows that law exists in the absence of state. Thus, primitive law (a law at the time of primitive society) serves the same function as does mature law [Paton; 1967: 72-3].

With regard to sanction as a condition of law in positive law, it is criticized that the observance of many rules is secured by the promise of reward (for example, the fulfilment of expectations) rather than imposing a sanction. Even though sanction plays a role in minority who is reluctant, the law is obeyed because of its acceptance by the community “habit, respect for the law as such, and a desire to reap the rewards which legal  protection of acts will bring” are important factors the law to be obeyed [Paton; 1967:74]

The third main criticism of definition of law by Austin (positive law theory) is that it is superficial to regard the command of the sovereign as the real source of the validity of law. It is argued that many regard law as valid because it is the expression of natural justice or the embodiment of the sprit of people [Paton; 1967: 77].

MARXIST LAW THEORY

Marxists believe that private property is the basis for the coming into existence of law and state. They provide that property was the cause for creation of classes in the society in which those who have the means of production can exploit those who do not have these means by making laws to protect the private property. They base their arguments on the fact that there was neither law nor state in primitive society for there was no private property. The theory has the assumption that people can attain a perfect equality at the communism stage in which there would be no private property, no state and no law. But, this was not yet attained and even the practice of the major countries like the former United Soviet Socialist Russia (U.S.S.R.) has proved that the theory is too good to be turn[Beset; 2006 ]. Nevertheless, this theory is challenged and the theory of private property triumphs.

REALIST THEORY OF LAW [Biset; 2006]

Realist theory of law is interested in the actual working of the law rather than its traditional definitions. It provides that law is what the judge decides in court. According to this theory, rules not put to use to solve practical cases are not laws but merely existing as dead words and these dead words of law get life only when applied in reality. Therefore, it is the decision given by the judge but not the legislators that is considered as law according to this theory. Hence, this theory believes that the lawmaker is the judge and not the legislative body.

This theory has its basis in the common law legal system in which the decision previously given by a court is considered as a precedent to be used as a law to decide future similar case. This is not applicable in civil law legal system, which is the other major legal system of the world, and as a result this theory has been criticized by scholars and countries following this legal system for the only laws of their legal system are legislation but not precedents. This implies that the lawmaker in civil law legal system is the legislative body but not the judge. The followers of this theory include Justice Homes, Lawrence Friedman, John Chpman Gray, Jerom Frank, Karl N. Lewelln and Yntema.