Discovering Laws and Legal Systems In Different Jurisdications - By: Allan Michael Taylor

One interpretation of 'law' in its broadest meaning is that it comprises all rules of conduct established by the governing authorities, as well as established customs of a community. The term, legal systems is usually used when one mentions the system of courts and tribunals within which such rules are applied in the course of the administration of justice. By this is meant administration of justice in accordance with law and not merely the abstract concept.

Legal systems and laws vary from country to country, some are military in nature, others are based to varying degrees on religion. The former are practised in most Western culture countries, while the latter includes the Amish view, which is based on the concept that the first law for man to obey is the law of God and not the law of the State, and the provisions of the Amish doctrines, therefore, combines the moral, religious and judicial laws.

The assertion that all men are equal under the law does not apply worldwide and in some countries the law may well be applied and interpreted differently depending on the sex, socio-economic level, political persuasion, connections or the racial, religious or ethnic background of those bringing or defending accusations.

Access to the law, that is the ability to enforce legal rights or defend oneself may also not be readily available, everywhere. Legal proceedings are expensive and systems of legal aid, if available, varies considerably from region to region. Laws are created either through legislation by the executive or by the legislature and this system is known as statute or statutory law alternatively, they are established by cases in law courts which then provides a system of precedents and this is known as common or case law.

Statute law takes the form of broad statements of overriding principles and aims and effect is given to these by a hierarchy of more specific rules, each level being read subject to the superior principles. Under case law greater emphasis is placed on the wording of the law and on previous court rulings and judgements.

Under the common law system the procedure tends to be adversarial, that is the opposing lawyers or counsels make the best case possible for their clients with the judge, as a kind of referee, finally making the decision or if a there is a jury, highlighting the issues for which their decision is required.

Other differences in legal systems include relative power in the hands of judges compared with juries, and what is and is not admitted as evidence, fact, hearsay and gossip. Branches of the law with which advertising executives and officials could be involved might be administrative law and criminal law.

Other sectors include the laws of contract — the concept of offer and acceptance, the contents of contracts, remedies for breach of contract and non-performance. The law of property includes distinctions between ownership and possession and its legal effects, sale, lease, hiring and related transactions.

In connection with business, be it industry or commerce, laws regulate the setting up of a business, whether as a sole trader, a partnership or a limited company, commercial contracts with suppliers and customers both in the domestic or home market and in foreign markets, including those relating to manufacture, distribution, and licensing or franchising. In the context of business, assets may not only refer to property such as factories, warehouses, shops and the like but also to copyright, trade marks, patents and know-how.

There are laws relating to acquisition of companies, their disposal and reconstruction. Other branches of the law cover activities relating to exports and imports. There is also employment law, with its subdivisions relating to race, sex
and age discrimination, employment protection, pension schemes and the like.

Laws relating to financing of business in all forms as well as the organisations and persons providing financial services are governed by a wide range of diverse systems of regulatory legislation in practically every country. There is the subject of environmental law to which industry and commerce are subject, including planning
rules and regulations. Many hundreds of people are arrested every year when they visit foreign countries for actual or alleged transgression of national or local laws, rules and regulations.

Such arrests may be related to perceived violations of regulations — governing the import or export of goods including smuggling, drunken and disorderly behaviour, offending religious rules, customs and taboos, taking unauthorised photographs, being in prohibited areas, motor vehicle-related offences, not complying with regulation governing crossing a road on foot, those relating to drugs and many others. It's a good idea to be aware of relevant laws and regulations, particularly if engaged in commerce or trade since ignorance of the law is usually no defence.

Because of different national laws and regulations applicable to banking and credit problems can be encountered by visitors to other countries. In some areas of the world it is a criminal offence to have a bank transfer stopped because the Bank did not honor the customer's bank account. A similar attitude may be taken by the authorities to payments made with credit cards, if the credit limit has been exceeded.

In Europe there is an additional legal system — the Law of the European Union. This operates alongside the laws of the individual member states of the European Union. In many spheres the Law of the European Union takes priority over national law of individual European Community member states.

In some countries it may be impossibleto establish what the law says on a specific matter because there may not be any laws or legal codes covering the subject.

One should also be aware that there are countries where there are few if any procedures for issues such as protesting bills, debt collection and arbitration, for company law including bankruptcy and liquidation, for laws concerning offences arising out of ownership of motor vehicles including accidents and personal injuries,
immigration, employment and labour laws, intellectual property legislation including patents, trade marks and copyright.

Cultural differences and legal orientation in other countries and other business cultures can and do account for differences in the meaning and interpretation of legal phrases, idioms and expressions and often more suitable and more appropriate alternatives will have to be found.

For example, the term 'force majeure' in some countries has a particular meaning, in others it will only be possible to establish a clear meaning if the parties concerned define it for themselves in their agreement. In many Western culture countries the legal term Act of Worship is usually used for events outside human control. However for a number of reasons including those based on religion, this turn
of phrase may be unacceptable in some countries and other expressions, such as 'conditions beyond the control of the parties' may have to be used.

During an international conference on Maritime matters it was realised that the languages used in some countries do not contain the expression 'Maritime fraud', their only equivalent being piracy, which in most countries is a very different type of crime or offence.

When an agreement to a transaction has been reached, whether or not there is some formalisation or contract and how it is to be interpreted is very much culture related. Parties to an agreement may consider that relationships, tradition, religion and culture are better protection against breach of contract than the law. While people from some countries, for example those in western Europe and North America, will not conclude business without some form of a written contract, others may consider that a person's word is more binding than a written agreement and consider insistence on a written contract as an insult.

The way the legal profession is organised or structured is often very dissimilar in different countries and this can have considerable implications and effects on the way in which lawyers function.

This also has implications in regard the rules and laws relating to them. For example, in some countries the concept of 'professional privilege' applies to communications between the lawyer and his client so that the lawyer cannot be required to disclose what passed between him and his client in connection with the lawsuit. In other countries this concept may not apply with the same intensity nor scope. This concept of confidentiality may on occasions also apply to specific exchanges of communication between opposing lawyers.

One should be aware that the phrase 'without prejudice' which is used in the course of negotiations in common law in the Great Britain is not known in most countries, except a few that are those that once were part of the British Empire.

This legal phrase allows parties, either a person or a group of people acting together, to discuss and negotiate a settlement to a legal claim, without
admitting liability. Any documents headed 'without prejudice' cannot be used in evidence in any subsequent court case without the permission of both parties.

About the Author

AS Harrington is a book publishers advisor to the book publishers industry who has book publishing experience. He's worked at book publishers, in New York. Publish a book at: http://www.schieldenver.com/

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