NEGARA SEBAGAI OBJEK ILMU PENGETAHUAN

Negara selalu menjadi pusat perhatian dan objek kajian bersamaan dengan berkembangnya ilmu pengetahuan umat manusia, sehingga banyak cabang ilmu pengetahuan yang menjadikan Negara sebagai objek kajiannya

• Ilmu Politik 
• Ilmu Negara 
• Ilmu Hukum Kenegaraan 
• Ilmu Hukum Administrasi Negara 
• Ilmu Hukum Tata Negara, dan masih banyak lagi yang lainnya.

Istilah Negara yan dikenal sekarang mulai timbul pada zaman rainassance di Eropa pada abad ke-15. Pada masa itu mulai dikenal istilah “Lo Stato” yang berasal dari bahasa Italia, yang kemuduan menjelma menjadi “L’Etat” dalam bahasa Prancis. Selanjutnya “State” dalam bahasa Inggris atau “Staat” dalam bahasa Jerman dan Belanda.

Secara sederhana oleh para sarjana sering diuraikan adanya 4 (empat) unsur dalam setiap Negara, yaitu :

• A definite territor
• A Population
• A Government
• Sovereignity 

Hans Kelsen dalam bukunya “General Theory of Law and State” menguraikan pandangannya tentang Negara atau “state a juristis entity dan state as a politically aiganized society atau state as power”.

Elemen Negara menurut Hans Kelsen mencakup :

• The Territory of the State (seperti mengenai pembentukan dan pembubaran Negara, serta mengenai pengakuan atas Negara dan pemerintahan) 
• Time Element of the State (waktu pembentukan Negara yang bersangkutan) 
• The People of the State (rakyat Negara yang bersangkutan) 
• The competence of the State as the Material Sphere of Validity of the National Legal Order (misalnya yang berkaitan dengan pengakuan internasional) 
• Conflict of Laws (pertentangan antar tata hukum) 
• The so-called Fundamental Rights and Duties of the State (soal jaminan hak dankebabasan hak asasi manusia) 
• The Power of the State (aspek-aspek mengenai kekuasaan Negara)

Untuk mencapai tujuan bersama, maka setiap manusia perlu bernegara, oleh karena Negara itu adalah organisasi kekuasaan daripada manusia-manusia (masyarakat) dan merupakan alat yang akan diperkunakan untuk mencapai tujuan bersama itu. Tiap-tiap Negara menpunyai tujuan :

•  Untuk memperluas kekuasaan semata-mata
• Untuk menyelenggarakan ketertiban hukum 
•  Untuk mencapai kesejahteraan umum.

Tujuan Negara RI ditegaskan dalam Pembukaan UUD Negara Republik Indonesia Tahun 1945 : “Untuk memajukan kesejahteraan umum, mencerdaskan kehidupan bangsa, dan ikut melaksanakan ketertiban dunia yang berdasarkan kemerdekaan, perdamaian abadi dan keadilan sosial”. (Negara Kesejahteraan).

Constitutionalism

Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law".

A political organization is constitutional to the extent that it "contain[s] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority" As described by political scientist and constitutional scholar David Fellman:

Constitutionalism is descriptive of a complicated concept, deeply imbedded in historical experience, which subjects the officials who exercise governmental powers to the limitations of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials…. Throughout the literature dealing with modern public law and the foundations of statecraft the central element of the concept of constitutionalism is that in political society government officials are not free to do anything they please in any manner they choose; they are bound to observe both the limitations on power and the procedures which are set out in the supreme, constitutional law of the community. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law.

 

United States

American constitutionalism has been defined as a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from the people, and is limited by a body of fundamental law. These ideas, attitudes and patterns of behavior, according to one analyst, derive from "a dynamic political and historical process rather than from a static body of thought laid down in the eighteenth century".

In U.S. history, constitutionalism—in both its descriptive and prescriptive sense—has traditionally focused on the federal Constitution. Indeed, a routine assumption of many scholars has been that understanding "American constitutionalism" necessarily entails the thought that went into the drafting of the federal Constitution and the American experience with that constitution since its ratification in 1789.

There is a rich tradition of state constitutionalism that offers broader insight into constitutionalism in the United States. While state constitutions and the federal Constitution operate differently as a function of federalism—the coexistence and interplay of governments at both a national and state level—they all rest on a shared assumption that their legitimacy comes from the sovereign authority of the people or Popular sovereignty. This underlying premise—embraced by the American revolutionaries with the Declaration of Independence—unites the American constitutional tradition. Both the experience with state constitutions before—and after—the federal Constitution as well as the emergence and operation of the federal Constitution reflect an on-going struggle over the idea that all governments in America rested on the sovereignty of the people for their legitimacy.

United Kingdom

The United Kingdom is perhaps the best instance of constitutionalism in a country that has an uncodified constitution. A variety of developments in seventeenth-century England, including "the protracted struggle for power between king and Parliament was accompanied by an efflorescence of political ideas in which the concept of countervailing powers was clearly defined," led to a well-developed polity with multiple governmental and private institutions that counter the power of the state.

The Sense of Justice in John Rawls

One area of Rawls’s work that has received relatively little attention in the literature is his account of moral psychology. The idea of a “sense of justice” is at the heart of this account;according to Rawls it is the primary source of our motivation to act in accordance with principles of justice.

However, Rawls carefully notes that a sense of justice is more than simply being able to follow the rules.

It is the ability to feel or perceive what is fair, and as a result it provides us with “the capacity to understand, to apply, and normally to be moved by an effective desire to act from (and not merely in accordance with) the principles of justice as the fair terms of social cooperation”.

A sense of justice leads one to realize that members of a society need fair terms of cooperation, and it expresses the willingness, if not the desire, to act in relation to others on terms everyone can endorse publicly.

Rawls’s earliest formulation of the idea of a sense of justice is in the 1963 essay, “The Sense of Justice,” which explores Rousseau’s claim that “the sense of justice is a true sentiment of the heart enlightened by reason, the natural outcome of our primitive affections”.

In this essay, Rawls seeks to answer some questions about the capacity for a sense of justice, including what accounts for people doing what justice requires. At bottom, a sense of justice is a feeling or sense of right and wrong, but more specifically it is a sense of fairness. It makes us not want to take advantage of others and it is the source of our feelings of indignation toward those who do. A sense of justice is also the source of our feelings of sympathy for those who are the victims of circumstances that we would call unjust. I will have more to say about these circumstances in a moment, but for now we should note that a sense of justice causes us to perceive, feel, and react in certain ways to certain kinds of situations. This is why Rawls maintains that one’s sense of justice “may be aroused or assuaged, and it is connected not only with such moral feelings as resentment and indignation but also...with natural attitudes such as mutual trust and affection”.

Although a sense of justice leads us to value fairness generally, Rawls’s analysis focuses on circumstances in which individuals are marginalized as a result of circumstances beyond their control, and which dramatically shape their life-prospects. People are born into particular families and thus begin their lives in social positions they have not chosen. These social positions shape one’s hopes and expectations, and the opportunities one has to fulfill those hopes and expectations are determined in part by the political system as well as economic and social circumstances. Rawls is particularly concerned that the basic structure of society can perpetuate these circumstances, when it should help correct them. Rawls observes that “our prospects over life are deeply affected by social, natural, and fortuitous contingencies, and by the way the basic structure, by setting up inequalities, uses those contingencies to meet certain social purposes”.

Rawls has three kinds of contingencies in mind here: (1) one’s social class of origin (the class into which one is born and develops before the age of reason); (2) one’s native endowments (as opposed to one’s realized endowments) and the opportunities one has to develop them due to one’s social class of origin; (3) one’s good or ill fortune, or good or bad luck over the course of life. The latter includes how one is affected by illness and accident, or by periods of involuntary unemployment and regional economic decline.

Rawls notes that these contingencies are the source of especially deep inequalities: “Not only are they pervasive, but they affect men’s initial chances in life; yet they cannot possibly be justified by an appeal to the notions of merit or desert. It is these inequalities, presumably inevitable in the basic structure of any society, to which the principles of social justice must in the first instance apply”.

LEGAL PERSONALITY

Legal personality (also artificial personality, juridical personality, and juristic personality) is the characteristic of a non-human entity regarded by law to have the status of a person.

A legal person (Latin: persona ficta), (also artificial person, juridical person, juristic person, and body corporate, also commonly called a vehicle) has a legal name and has rights, protections, privileges, responsibilities, and liabilities under law, just as natural persons (humans) do. The concept of a legal person is a fundamental legal fiction. It is pertinent to the philosophy of law, as is essential to laws affecting a corporation (corporations law) (the law of business associations).

Legal personality allows one or more natural persons to act as a single entity (a composite person) for legal purposes. In many jurisdictions, legal personality allows such composite to be considered under law separately from its individual members or shareholders. They may sue and be sued, enter into contracts, incur debt, and have ownership over property. Entities with legal personality may also be subject to certain legal obligations, such as the payment of tax. An entity with legal personality may shield its shareholders from personal liability.

The concept of legal personality is not absolute. "Piercing the corporate veil" refers to looking at individual human agents involved in a corporate action or decision; this may result in a legal decision in which the rights or duties of a corporation are treated as the rights or liabilities of that corporation's shareholders or directors. Generally, legal persons do not have all the same rights as natural persons - for example, human rights or civil rights (including the right to freedom of speech, although the United States has become an exception in this regard).

The concept of a legal person is now central to Western law in both common law and civil law countries, but it is also found in virtually every legal system.

PERKUMPULAN / PERHIMPUNAN / ORGANISASI (VERENIGING)

Keberadaan lembaga sosial tidak lepas dari adanya nilai dan norma dalam masyarakat. Di mana nilai merupakan sesuatu yang baik, dicita- citakan, dan dianggap penting oleh masyarakat. Oleh karenanya, untuk mewujudkan nilai sosial, masyarakat menciptakan aturan-aturan yang tegas yang disebut norma sosial. Nilai dan norma inilah yang membatasi setiap perilaku manusia dalam kehidupan bersama. Sekumpulan norma akan membentuk suatu sistem norma. Inilah awalnya lembaga sosial terbentuk. Sekumpulan nilai dan norma yang telah mengalami proses institutionalization menghasilkan lembaga sosial.

Organisasi yang didirikan tentu memiliki sasaran yang ingin dicapai secara maksimal. Oleh karenanya suatu organisasi menentukan sasaran pokok mereka berdasarka kriteria-kriteria organisasi tertentu. Adapun sasaran yang ingin dicapai umumnya menurut J Winardi adalah:

1. Organisasi berorientasi pada pelayanan (service organizations), yaitu organisasi yang berupaya memberikan pelayanan yang profesional kepada anggotanya maupun pada kliennya. Selain itu siap membantu orang tanpa menuntut pembayaran penuh dari penerima servis.
2. Organisasi yang berorientasi pada aspek ekonomi (economic organizations), yaitu organisasi yang menyediakan barang dan jasa sebagai imbalan dalam pembayaran dalam bentuk tertentu.
3. Organisasi yang berorientasi pada aspek religius (religious organizations)
4. Organisasi-organisasi perlindungan (protective organizations)
5. Organisasi-organisasi pemerintah (government organizations)
6. Organisasi-organisasi sosial (social organizations)

Perkumpulan / perhimpunan ialah yang lazim dalam bahasa Belanda disebut vereniging (sebagai lawan kata dari maatschap atau vennootschap) seperti yang diatur dalam KUH Perdata Buku III Bab IX; Stb 1970-64; dan Stb 1939-570, adalah perkumpulan yang tidak termasuk dalam hukum dagang. Baik yang berbadan hukum maupun tidak berbadan hukum.

Adapun tentang Yayasan tidak termasuk dalam pengertian perkumpulan dalam arti sempit ini yang diatur secara khusus menurut Undang-undang Nomor 16 Tahun 2001 dan UU Nomor 28 Tahun 2004. Stichting atau yayasan adalah suatu badan hukum yang berbeda dengan badan hukum perkumpulan ataupun perseroan, oleh karena berkaitan dengan sejumlah kekayaan (asset) yang harus diurus dan digunakan (bagaimana mengurus harta/budel), yang tidak bertujuan untuk membagikan kekayaan dan atau penghasilan kepada pendiri atau pengurusnya dan orang-orang lain.

Ciri-ciri yayasan :
1. ada tujuan (sosial non komersial)
2. tidak ada keanggotaannya;
3. tidak ada hak bagi pengurus untuk mengubah tujuan;
4. modal yang menjadi kekayaan yang dipisahkan untuk pencapaian
dari suatu tujuan.

Adapun tentang Perkumpulan (usaha dagang) merupakan pengertian yang luas meliputi semua persekutuan, koperasi dan perkumpulan saling menanggung, yang meliputi perkumpulan berbadan hukum dan yang tidak berbadan hukum.

Perkumpulan (usaha dagang) yang berbadan hukum :
1. perseroan terbatas;
2. koperasi;
3. perkumpulan saling menanggung.

Perkumpulan (usaha dagang) yang tidak berbadan hukum :
1. persekutuan perdata;
2. persekutuan firma;
3. persekutuan komanditer.

Adapun dalam perkumpulan / perhimpunan memiliki anggota yang meliputi beberapa orang yang hendak mencapai suatu kehendak / tujuan dam bidang non ekonomis (tidak untuk mencari keuntungan) bersepakat untuk mengadakan suatu kerja sama yang bentuk dan caranya diletakan dalam apa yang dinamakan Anggaran Dasar atau Reglemen atau Statuten. Sifat perkumpulan adalah perjanjian yang dituangkan dalam akta pendirian.

Istilah yang sering dijumpai yaitu : Verein (Jerman), Association (Inngris), Union (Prancis), adapun dalam bahasa indonesia, yaitu : Perkumpulan, Perhimpunan, Lembaga, Paguyuban, Perikatan, Ikatan, Persatuan, Kesatuan, Serikat, dan lain-lain.

Tujuan Perkumpulan ini adalah non-ekonomis dan diatur dalam peraturan perundang-undangan, yaitu :
1. KUH Perdata Buku III Bab IX, berjudul Van Zedelijke Lichamen
(Perkumpulan), Pasal 1653 s/d 1655, yang kemudian ditambah
dengan Pasal 1656 s/d 1665;
2. Stb 1870-64 tentang Badan Hukum bagi Perkumpulan
(Rechtspersoonlijkeheid van Verenigingen);
3. Stb 1939-570 bsd 717 tentang Perkumpulan Indonesia
(Inlandsche Vereniging).

Kedudukan badan hukum dari perkumpulan menurut Stb 1870-64 itu diperoleh sesudah ada pengakuan (pengesahan) dari Menteri Kehakiman (sekarang Menteri Hukum dan HAM). Pasal 1 berbunyi : "Tiada suatu perkumpulan orang-orang apa pun juga dapat bertindak sebagai badan hukum, selain dari yang didirikan menurut peraturan umum (algemene verordening) dan itu pun jika sudah diakui oleh Gubernur Jenderal (sekarang Menteri Hukum dan HAM), atau oleh pejabat yang ditunjuk.

Dalam rangka pembinaan dan pengawasan maka setiap perkumpulan didaftar pada Kementerian Dalam Negeri.

Staatsblad 1933 – 84 Pasal 11 point 8:
”perkumpulan yang tidak didirikan sebagai badan hukum menurut peraturan umum tidak dapat melakukan tindakan-tindakan perdata”.

Bedasarkan pembahasan di atas, maka jelas perbedaan antara Perkumpulan dalam arti sempit dengan Perkumpulan dalam artin luas, serta perbedaannya dengan Yayasan (Stichting).

CONSTITUTIONAL LAW

Constitutional law is a body of law dealing with the distribution and exercise of government power.

Not all nation states have codified constitutions, though all such states have a jus commune, or law of the land, that may consist of a variety of imperative and consensual rules. These may include customary law, conventions, statutory law, judge-made law or international rules and norms, and so on.

Constitutional laws may often be considered second order rulemaking or rules about making rules to exercise power. It governs the relationships between the judiciary, the legislature and the executive with the bodies under its authority. One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power. For example, in a unitary state, the constitution will vest ultimate authority in one central administration and legislature, and judiciary, though there is often a delegation of power or authority to local or municipal authorities. When a constitution establishes a federal state, it will identify the several levels of government coexisting with exclusive or shared areas of jurisdiction over lawmaking, application and enforcement.

Another main function of constitutions may be to describe the procedure by which parliaments may legislate. For instance, special majorities may be required to alter the constitution. In bicameral legislatures, there may be a process laid out for second or third readings of bills before a new law can enter into force. Alternatively, there may further be requirements for maximum terms that a government can keep power before holding an election.

The doctrine of the rule of law dictates that government must be conducted according to law.

Dicey identified three essential elements of the British Constitution which were indicative of the rule of law:

1. Absence of arbitrary power;
2. Equality before the law;
3. The Constitution is a result of the ordinary law of the land.

TERM OF LAW

Term " law" coming from Arab language of hukmun with the meaning " specifying". In academic world, a more regular legal term befited with term of ius. written down Ius or constitutium is law and regulation (lege, droit, wet). Become, law can be interpreted as norm, both for written and also is unwritten. Law created by state bodys and government named by law and regulation (regel) or regulation of policy (regel policy, policy of regel). While monarchic laws named with Book ofKing. For customary laws which have been written down till now not yet owned special name.

Because of usage of ism or viewpoint / stream think which different each other, hence definition about law even also different each other also. There is four stream think which enough have an effect on in idea of law :

1. Stream Natural Law or Natural Law, having a notion that prima facie or highest law, which from Positive Law him come. Natural Law come from God comand.
2. Stream of Positivisme Law, having a notion that prima facie law is law coming or created by human being, namely Positive Law.
3. Stream History Punish or Historical Law, having a notion that law is rule of the game in assocciation of social which is found in society, its meaning of law represent nation soul/ head.
4. Stream Sociology Law, having a notion that order punish also come from religion institution and or society institution.

COMMON LAW AND RELIGIOUS LAW

Country	Description
Bangladesh
Brunei
Gambia
India	based on English common law, separate personal law codes apply to Muslims, Christians, and Hindus except in Goa which follows Civil law based on Portuguese civil laws, but criminal penal law is uniform
Malaysia	based on English common law, personal law based on sharia law applies to Muslims
Nigeria	Sharia is applied in some northern states
Pakistan	based on English Common Law, some Islamic Law applications in inheritance. Tribal Law in FATA
Qatar

CIVIL LAW AND RELIGIOUS LAW

Country	Description
Afghanistan
Algeria
Bahrain
Comoros
Djibouti
Egypt	Based on Islamic law and French civil law system
Eritrea
Indonesia	Based on civil law of Holland and adat (cultural law of Indonesia)
Morocco	Based on Islamic law and French and Spanish civil law system
Oman
Syria	Based on Islamic law and French civil law system
Jordan	Mainly based on French Civil Code and Ottoman Majalla, Islamic law applicable to family law.

CIVIL LAW AND COMMON LAW

Country	Description
Botswana	South African law (a mixed system) transferred uno acto through a proclamation of reception
Cameroon
Cyprus	Based on English common law (Cyprus was a British colony 1878-1960), with admixtures of French and Greek civil and public law, Italian civil law, Indian contract law, Greek Orthodox canon law, Muslim religious law, and Ottoman civil law.
Guyana
Israel	Originally (1948) based on English common law; in the process, influenced by German civil law—for instance, between 1962 and 1981, the Knesset issued twenty (20) wide-ranging laws, which were clearly influenced by civil law, and were in the form of codes. Religious law plays a role, especially in matters of personal status and family law, and judicial and legislative decisions take into account Jewish law (halakhah) on occasion.
Lesotho	South African law (a mixed system) transferred uno acto through a proclamation of reception
Louisiana (U.S.)	Based on French and Spanish civil law, but federal laws (based on common law) are in effect in Louisiana as well.
Malta	Initially based on Roman Law and eventually progressed to the Code de Rohan, Code Napoleon with influences from Italian Civil Law. English common law however is also a source of Maltese Law, most notably in Public Law
Mauritius
Namibia	South African law (a mixed system) transferred uno acto through a proclamation of reception
Philippines	Based on Spanish law; influenced by U.S. common law after 1898 Spanish and Philippine-American Wars, personal law based on sharia law applies to Muslims
Puerto Rico (U.S.)	Based on Spanish law; influenced by U.S. common law after 1898 (victory of the U.S. over Spain in the Spanish-American war of 1898 and cession of Puerto Rico to the U.S.)
Quebec (Canada)	After the defeat of the French in the battle at the Plains of Abraham, the British allowed them to keep their language (French), their religion (Roman Catholicism), and their legal system (civil law). However, as Quebec is part of the Canadian Confederation, English-based laws applied at the federal level are in effect in Quebec also.
Saint Lucia
Scotland	based on Roman and continental law, with common law elements dating back to the High Middle Ages
Seychelles	The substantive civil law is based on the French Civil Code. Otherwise the criminal law and court procedure are based on the English common law. See Seychelles Legal Environment.
South Africa	An amalgam of English common law and Roman-Dutch civil law as well as Customary Law.
Sri Lanka	An amalgam of English common law, Roman-Dutch civil law and Customary Law
Swaziland	South African law (a mixed system) transferred uno acto through a proclamation of reception
Thailand	The Thai legal system became an amalgam of German, Swiss, French, English, Japanese, Italian, and Indian laws and practices. Even today, Islamic laws and practices exist in four southern provinces. Over the years, Thai law has naturally taken on its own Thai identity].
Vanuatu
Zimbabwe	South African law (a mixed system) transferred uno acto through a proclamation of reception

RELIGIOUS LAW

Religious law refers to the notion of a religious system or document being used as a legal source, though the methodology used varies. For example, the use of Jewish Halakha for public law has a static and unalterable quality, precluding amendment through legislative acts of government or development through judicial precedent; Christian Canon Law is more similar to civil law in its use of civil codes; and Islamic Sharia law (and Fiqh jurisprudence) is based on legal precedent and reasoning by analogy (Qiyas), and is thus considered similar to common law. The main kinds of religious law are Sharia in Islam, Halakha in Judaism, and canon law in some Christian groups. In some cases these are intended purely as individual moral guidance, whereas in other cases they are intended and may be used as the basis for a country's legal system. The latter was particularly common during the Middle Ages.

The Islamic legal system of Sharia (Islamic law) and Fiqh (Islamic jurisprudence) is the most widely used religious law, and one of the three most common legal systems in the world alongside common law and civil law. It is the most protected divine law, because, the majority of the ruleings of Sharia law is based on the Qur'an and Sunnah, while small fraction of its rulings are based on the Ulema (jurists) who used the methods of Ijma (consensus), Qiyas (analogical deduction), Ijtihad (research) and Urf (common practice) to derive Fatwā (legal opinions). An Ulema was required to qualify for an Ijazah (legal doctorate) at a Madrasah (school) before they could issue Fatwā. During the Islamic Golden Age, classical Islamic law may have had an influence on the development of common law and several civil law institutions. Sharia law governs a number of Islamic countries, including Saudi Arabia and Iran, though most countries use Sharia law only as a supplement to national law. It can relate to all aspects of civil law, including property rights, contracts or public law.

The Halakha is followed by orthodox and conservative Jews in both ecclesiastical and civil relations. No country is fully governed by Halakha, but two Jewish people may decide, because of personal belief, to have a dispute heard by a Jewish court, and be bound by its rulings.

Canon law is not a divine law, properly speaking, because it is not found in revelation. Instead, it is seen as human law inspired by the word of God and applying the demands of that revelation to the actual situation of the church. Canon law regulates the internal ordering of the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion. Canon law is amended and adapted by the legislative authority of the church, such as councils of bishops, single bishops for their respective sees, the Pope for the entire Catholic Church, and the British Parliament for the Church of England.

Country	Description
Afghanistan	Islamic law
Bangladesh	formerly based on English common law
The Gambia	English common law, Islamic law and customary law
Iran	Islamic law
Libya	Islamic law
Mauritania	mix of Islamic law and French Civil Codes, Islamic law largely applicable to family law.
Morocco	mix of Islamic law and French Civil Codes, Islamic law largely applicable to family law.
Nigeria	Sharia
Oman	Sharia and tribal custom laws
Saudi Arabia	Islamic law
Sudan	Based on Islamic law
Vatican City	Based on principles of Code of Canon Law
Yemen	Islamic law

COMMON LAW

Common law and equity are systems of law whose sources are the decisions in cases by judges. Alongside, every system will have a legislature that passes new laws and statutes. The relationships between statutes and judicial decisions can be complex. In some jurisdictions such statutes may overrule judicial decisions or codify the topic covered by several contradictory or ambiguous decisions. In some jurisdictions judicial decisions may decide whether the jurisdiction's constitution allowed a particular statute or statutory provision to be made or what meaning is contained within the statutory provisions. Statutes were allowed to be made by the government. Common law developed in England, influenced by the Norman conquest of England which introduced legal concepts from Norman Law, which in turn was influenced by aspects of Islamic Law. Common law was later inherited by the Commonwealth of Nations, and almost every former colony of the British Empire has adopted it (Malta being an exception). The doctrine of stare decisis or precedent by courts is the major difference to codified civil law systems.

Common law is currently in practice in Ireland, most of the United Kingdom (England and Wales and Northern Ireland), Australia, India (excluding Goa), Pakistan, South Africa, Canada (excluding Quebec), Hong Kong, the United States (excluding Louisiana) and many other places. In addition to these countries, several others have adapted the common law system into a mixed system. For example, Nigeria operates largely on a common law system, but incorporates religious law.

In the European Union the Court of Justice takes an approach mixing civil law (based on the treaties) with an attachment to the importance of case law. One of the most fundamental documents to shape common law is Magna Carta which placed limits on the power of the English Kings. It served as a kind of medieval bill of rights for the aristocracy and the judiciary who developed the law.

Country	Description
American Samoa
Antigua and Barbuda	based on English common law
Australia	based on English common law
Bahamas	based on English common law
Barbados	based on English common law
Belize	based on English common law
Bhutan
British Virgin Islands	based on English common law
Canada	based on English common law, except in Quebec, where a civil law system based on French law prevails in property and private matters
Dominica	based on English common law
England and Wales (UK)	primarily common law, with early Roman and some modern continental influences
Fiji	based on English common law
Gibraltar	based on English common law
Ghana
Myanmar	based on English common law
Grenada	based on English common law
Hong Kong	principally based on English common law
India	based on English common law (except Goa which follows a Civil Law based on Portuguese Civil Law)
Ireland	based on Irish law before 1922, which was itself based on English common law
Jamaica	based on English common law
Kiribati	based on English common law
Marshall Islands	based on U.S. Law
Nauru	based on English common law
New Zealand	based on English common law
Northern Ireland (UK)	based on Irish law before 1921, which was itself based on English common law
Palau	based on U.S. Law
Pakistan	based on English common law with some provisons of Islamic law
Saint Kitts and Nevis	based on English common law
Saint Vincent and the Grenadines	based on English common law
Singapore	based on English common law
Tonga	based on English common law
Trinidad and Tobago	based on English common law
Tuvalu	based on English common law
Uganda	based on English common law
United States	Federal courts and 49 states use legal system originally based on English common law but which diverged greatly in 19th century with substantial indigenous innovations and borrowing of some civil law practices such as codification; State law in the U.S. state of Louisiana is based upon French and Spanish civil law (see below)

CIVIL LAW

Civil law is the most widespread system of law around the world. It is also sometimes known as Continental European law. The central source of law that is recognized as authoritative are codifications in a constitution or statute passed by legislature, to amend a code. While the concept of codification dates back to the Code of Hammurabi in Babylon ca. 1790 BC, civil law systems mainly derive from the Roman Empire, and more particularly, the Corpus Juris Civilis issued by the Emperor Justinian ca. 529 AD. This was an extensive reform of the law in the Byszantine Empire, bringing it together into codified documents. Civil law was also partly influenced by Religious Laws such as Canon Law and Islamic Law. Civil law today, in theory, is interpreted rather than developed or made by judges. Only legislative enactments (rather than judicial precedent, as in common law) are considered legally binding.

Scholars of Comparative Law and economists promoting the legal origins theory usually subdivide civil law into four distinct groups:

• French civil law: in France, the Benelux countries, Italy, Romania, Spain and former colonies of those countries;
• German civil law: in Germany, Austria, Switzerland, former Yugoslav republics, Greece, Portugal, Turkey, Japan, South Korea and the Republic of China;
• Scandinavian civil law: in Denmark, Norway and Sweden. As former colonies, Finland and Iceland inherited the system from their neighbors.
• Chinese law is a mixture of civil law and socialist law.

A comprehensive list of countries that base their legal system on a codified civil law follows:

Country	Description
Albania	The Civil Code of the Republic of Albania, 1991 really
Angola	Based on Portuguese civil law
Argentina	The Spanish legal tradition had a great influence on the Civil Code of Argentina, basically a work of the Argentine jurist Dalmacio Vélez Sársfield, who dedicated five years of his life on this task. The Civil Code came into effect on January 1, 1871. Beyond the influence of the Spanish legal tradition, the Argentinian Civil Code was also inspired by the Draft of the Brazilian Civil Code, the Draft of the Spanish Civil Code of 1851, the Napoleonic code and the Chilean Civil Code. The sources of this Civil Code also include various theoretical legal works, mainly of the great French jurists of the 19th century. It was the first Civil Law that consciously adopted as its cornerstone the distinction between i. rights from obligations and ii. real property rights, thus distancing itself from the French model. The Argentinian Civil Code was also in effect in Paraguay, as per a Paraguayan law of 1880, until the new Civil Code went in force in 1987. During the second half of the 20th century, the German legal theory became increasingly influential in Argentina.
Andorra	Courts apply the customary laws of Andorra, supplemented with Roman law and customary Catalan law.
Aruba	Based on Dutch civil law
Austria	The Allgemeines bürgerliches Gesetzbuch (ABGB) of 1811
Azerbaijan
Belarus
Belgium	The Napoleonic Code is still in use, although it is heavily modified (especially concerning family law)
Benin
Bolivia	Influenced by the Napoleonic Code
Bosnia and Herzegovina	Influenced by Austrian law. The Swiss civil law (Zivilgesetzbuch) was a model for the Law on Obligations of 1978.
Brazil	Derived from the German and Roman civil law
Bulgaria	Civil Law system influenced by Germanic and Roman law systems
Burkina Faso
Burundi
Chad
People's Republic of China	civil law system; based on native customs and practices with Soviet and German influence
Republic of the Congo
Democratic Republic of the Congo
Cote d'Ivoire
Cambodia
Cape Verde	Based on Portuguese civil law
Central African Republic
Chile	The Spanish legal tradition exercised an especially great influence on the civil code of Chile. On its turn, the Chilean civil code influenced to a large degree the drafting of the civil codes of other Latin-American states. For instance, the codes of Ecuador (1861) and Colombia (1873) constituted faithful reproductions of the Chilean code, but for very few exceptions. The compiler of the Civil Code of Chile, venezuelan Andrés Bello, worked for its completion for almost 30 years, using elements, of the Spanish law on the one hand, and of other Western laws, especially of the French one, on the other. Indeed, it is noted that he consulted and used all of the codes that had been issued till then, starting from the era of Justinian. The Civil Code came into effect on January 1, 1857. Its technique is regarded as perfect; it is distinguished for the clarity, logic and cohesiveness of its provisions. As mentioned by Arminjon, Nolde, and Wolff ('Traite de droit comparé', Paris, 1950-1952) Andrés Bello may be regarded as one of the great legislators of mankind. The influence of the Napoleonic code is great; it is observed however that e.g. in many provisions of property law, the solutions of the French code civil were put aside in favor of pure Roman law.
Colombia	Civil code introduced in 1873. Nearly faithful reproduction of the Chilean civil code
Costa Rica	First Civil Code (a part of the General Code or Carrillo Code) came into effect in 1841; its text was inspired by the South Peruvian Civil Code of Marshal Andres de Santa Cruz. The present Civil Code is into effect since January 1, 1888, and reveals the influenced by the Napoleonic Code and the Spanish Civil Code of 1889 (from its 1851 draft version).
Croatia	Influenced by Austrian and Hungarian law. The Law on Obligations of 2005.
Cuba	Influenced by Spanish and American law with large elements of Communist legal theory.
Czech Republic	Descended from Austro-Hungarian Allgemeines bürgerliches Gesetzbuch, influenced by German (minor influence) and Soviet (major influence) legal codes during occupation periods, substantially reformed after the Velvet Revolution of 1989.
Denmark	Scandinavian-German civil law
Dominican Republic	Based by the Napoleonic Code
Ecuador	Civil code introduced in 1861. Nearly faithful reproduction of the Chilean civil code
El Salvador
Estonia
Finland	civil law system based on Swedish law
France	Based on the Napoleonic code (code civil of 1804)
Equatorial Guinea
Ethiopia
Gabon
Guinea	based on French civil law system, customary law, and decree
Guinea-Bissau
Georgia
Germany	The Bürgerliches Gesetzbuch of 1900 ("BGB"). The BGB is influenced both by Roman and German law traditions.
Greece	The Greek civil code of 1946, highly influenced by the German civil code of 1900 (Bürgerliches Gesetzbuch); the Greek civil code replaced the Byzantine-Roman civil law in effect in Greece since its independence (Νομική Διάταξη της Ανατολικής Χέρσου Ελλάδος, Legal Provision of Eastern Mainland Greece, November 1821: 'Οι Κοινωνικοί Νόμοι των Αειμνήστων Χριστιανών Αυτοκρατόρων της Ελλάδος μόνοι ισχύουσι κατά το παρόν εις την Ανατολικήν Χέρσον Ελλάδα', 'The Social [i.e. Civil] Laws of the Dear Departed Christian Emperors of Greece [referring to the Byzantine Emperors] alone are in effect at present in Eastern Mainland Greece')
Guatemala	Guatemala has had three Civil Codes: the first one from 1877, a new one introduced in 1933, and the one currently in force, which was passed in 1963. This Civil Code has suffered some reforms throughout the years, as well as a few derogations relating to areas which have subsequently been regulated by newer laws, such as the Code of Commerce and the Law of the National Registry of Persons. In general, it follows the tradition of the roman-French system of civil codification. Regarding the theory of 'sources of law' in the Guatemalan legal system, the 'Ley del Organismo Judicial' recognizes 'the law' as the main legal source (in the sense of legislative texts), although it also establishes 'jurisprudence' as a complementary source. Although jurisprudence technically refers to judicial decisions in general, in practice it tends to be confused and identified with the concept of 'legal doctrine', which is a qualified series of identical resolutions in similar cases pronounced by higher courts (the Constitutional Court acting as a 'Tribunal de Amparo', and the Supreme Court acting as a 'Tribunal de Casación') whose theses become binding for lower courts.
Haiti	Influenced by the Napoleonic Code
Honduras
Hungary
Iceland	Based on Germanic traditional laws and influenced by Medieval Norwegian and Danish laws.
Italy	Based on codified Roman law, with elements of the Napoleonic civil code; civil code of 1942 replaced the original one of 1865
Japan	Modeled after European (primarily German) civil law system. Japanese civil code of 1895.
Latvia	Largely influenced by Germany, medium influences from Russian and Soviet law.
Lebanon	Modeled after French civil law
Lithuania	Modeled after Dutch civil law
Luxembourg	Influenced by the Napoleonic Code
Macau	Based on the Portuguese strand of the continental tradition, itself much influenced by Germany; also influenced by the law of the PRC
Mexico	"The origins of Mexico's legal system are both ancient and classical, based on the Greek, Roman and French legal systems, and the Mexican system shares more in common with other legal systems throughout the world (especially those in Latin America and most of continental Europe)..." From: http://www.mexonline.com/lawreview.htm Jaime B. Berger Stender Attorney at Law author, Tijuana, B.C., Mexico
Mongolia	Civil Code of 2002 based on German BGB
Montenegro	First: the General Property Code for the Principality of Montenegro of 1888, written by Valtazar Bogišić. Present: the Law on Obligations of 2008.
Netherlands	Influenced by the Napoleonic Code
Norway	Scandinavian-German civil law. King Magnus VI the Lawmender unified the regional laws into a single code of law for the whole kingdom in 1274. This was replaced by Christian V's Norwegian Code of 1687.
Panama
Paraguay	The Paraguayan Civil Code in force since 1987 is largely influenced by the Napoleonic Code and the Argentinian Code
Peru	Based on civil law system; accepts compulsory ICJ jurisdiction with reservations
Poland	The Polish Civil Code in force since 1965
Portugal	Influenced by the Napoleonic Code and later by the German Civil Law
Republic of China (Taiwan)	Codification derived from German BGB.
Romania	Based on the Napoleonic Code
Russia	Civil Law system descendant from Roman Law through Byzantine tradition. Heavily influenced by German and Dutch norms in 1700-1800's. Socialist-style modification in 1900's, and Continental European Law influences since 1990's.
São Tomé e Príncipe	Based on Portuguese civil law
Serbia	First: the Civil Code of Principality of Serbia of 1844, written by Jovan Hadžić, was influenced by the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch). Present: The Swiss civil law (Zivilgesetzbuch) was a model for the Law on Obligations of 1978.
Slovakia	Descended from Austro-Hungarian law, influenced by German (minor influence prior to 1945) and Soviet (major influence after World War II) law, reformed after the Velvet Revolution of 1989.
Slovenia	A Civil Law system influenced mostly by Germanic and Austro-Hungarian law systems
Spain	Influenced by the Napoleonic Code, it also has some elements of Spain's legal tradition, starting with the Siete Partidas, a major legislative achievement from the Middle Ages. That body of law remained more or less unchanged until the 19th century, when the first civil codes were drafted, merging both the Napoleonic style with the Castilian tradions.
Sweden	Scandinavian-German civil law. Like all Scandinavian legal systems, it is distinguished by its traditional character and for the fact that it did not adopt elements of Roman law. It is indeed worth mentioning that it assimilated very few elements of foreign laws whatsoever. It is also interesting that the Napoleonic Code had no influence in codification of law in Scandinavia. The historical basis of the law of Sweden, just as for all Nordic countries, is Old German law. Codification of the law started in Sweden during the 18th century, preceding the codifications of most other European countries. However, neither Sweden, nor any other Nordic state created a civil code of the kind of the Code Civil or the BGB.
Switzerland	The Zivilgesetzbuch of 1908 and 1912 (obligations; fifth book)
Turkey	Modeled after the Swiss civil law (Zivilgesetzbuch) of 1907; this has been a conscious choice of Kemal Atatürk, the founder of the modern Turkish state, in order to abolish the Islamic law (Sharia), aiming at westernizing the country
Ukraine	Civil Code of Ukraine of 2004
Uruguay
Uzbekistan	Represents an evolution of Soviet civil law. Overwhelmingly strong impact of the Communist legal theory is traceable.
Vietnam	Communist legal theory and French civil law