The global legal system and Bangladesh

Every country's legal system has its own specific dynamics. Each country, in its own form and independently, formulates its legal system based on its customs, culture, nature, and necessities. It is acknowledged that a country without a legal system is like a lifeless body, incapable of performing any functions. In the evolution of legal systems in different countries, various elements such as customs, religion, courts, etc., have had significant influence. This is why the expression of different laws varies from state to state, and similarities and differences exist among the elements of laws in different countries.

The economic and social aspects of state law in different countries allow their legal systems to be classified into specific legal systems. Similarly, the legal systems of all the countries of the world have been categorised into a few specific legal groups based on the nature, subject matter, economic and social policies, and several common features of law. Each of these groups is known as a major legal system or legal family. According to Rene David & Brierly, although there are mainly four types of legal systems in the current world, in reality, there are five legal systems:

1. The Civil Legal System – This legal system is primarily based on Roman law, the world's earliest and original legal system. Roman law is the fundamental foundation of this system. Features of this system include: (a) jurists play a major role in the creation of this legal system. Its operation and enforcement were entrusted to the courts. (b) its greatest development occurred in private law. (c) codification and statutory laws are the main sources of this system. Currently, this system is practised in France, Japan, Germany, Italy, Spain, South Africa, and countries in South and Central America.

2. The Common Legal System – This system consists of English law and the laws of those countries that have based their legal structures on English law. Its origin and evolution occurred through different methods and historical contexts. Features of this system include: (a) honourable judges primarily created this legal system. (b) it emphasises various procedural laws. (c) it has a strong foundation in precedent. (d) it originated in England and has a tripartite form:

1. Common Law – regarded as the primary source. 2. Equity Law – used for supplementation and correction of sources. 3. Statutory Laws – written laws by Parliament. This system spread to various parts of the world through British colonialism. Currently, the common legal system is practised in England, Bangladesh, India, the United States, Australia, Canada, Pakistan, Burma, the Philippines, Ireland, and New Zealand.

3. The Soviet Legal System (Socialist Law) – This legal system originated in Soviet Russia following the 1917 Russian Revolution and the communist ideology. After World War II, it became one of the prominent legal systems globally. The foundation of this system is based on the ideology of socialist states. Features include: (a) it emerged from socialist states and is based on the ideas of Marx and Lenin. The countries that followed this system previously adhered to civil law systems, whose influence is still observed, though later modified. (b) it is influenced by Roman and German law. Its uniqueness lies in its emergence through state development. (c) in this system, the state and law are seen as identical. The source of this law is the will of the people. Currently, this system is in practice in China, Mongolia, North Vietnam, North Korea, Bulgaria, West Germany, Poland, Romania, and Yugoslavia.

4. The Philosophical or Religious Legal System – In some countries of the world, religious and philosophical laws are in practice, such as Muslim law, Hindu law, and Jewish law. The basis of these laws is the respective sacred religious scriptures. Muslim Law: Applicable to Muslims, this legal system is practised in Arab countries, Bangladesh, North and Central Africa, countries in West and South Asia, and the East Indies. Hindu Law: Applicable to Hindus, this system is practised in India, Bangladesh, or regions and countries where Hindus live. Jewish Law: Applicable to Jews, this system is practised in Israel.

5. The Primitive Legal System – The fundamental basis of primitive law is ancient customs or traditions. This is generally applicable to backward communities. This system is applicable to regions in South Africa, the Indian Ocean region, and Asian tribal communities. Currently, the "Civil Law" and "Common Law" systems are more widely practised in the world. Therefore, understanding the role of courts in both systems is essential. A comparative analysis of courts in "Civil Law" and "Common Law" systems is as follows:

1. In the "Civil Law" system, there are Regular Courts and Administrative Courts – meaning separate courts exist for government and private individuals.

In contrast, in the "Common Law" system, all individuals are judged in the same courts, although in Bangladesh there is an Administrative Tribunal for job-related cases of government officials and employees.

2. In the "Civil Law" system, civil and criminal cases are judged in the same courts. In contrast, in the "Common Law" system, civil and criminal cases are judged in separate courts.

3. The "Civil Law" system has separate institutions for alternative dispute resolution at the primary level of cases. In contrast, the "Common Law" system has no such statutory institution, although in Bangladesh, the "Arbitration Act" exists, and some laws include provisions for settlement.

4. In the "Civil Law" system, multiple judges are present in every court. In contrast, the "Common Law" system has no such provision; except in higher courts, a single judge usually presides.

5. In the "Civil Law" system, judges themselves investigate and uncover the true facts. On the other hand, in the "Common Law" system, judges do not investigate to determine the facts; they only perform court duties.

6. The "Civil Law" system has a "federation" court to implement fundamental rights. In contrast, the "Common Law" system has no separate constitutional court – the Supreme Court carries out that function.

7. The "Civil Law" system has a simple court structure with clearly divided jurisdiction. In contrast, the "Common Law" system has court divisions from the lowest to the highest levels with overlapping jurisdictions.

8. In the "Civil Law" system, when there are multiple judges in a court, no judge can give a separate verdict. In contrast, in the "Common Law" system, when there are multiple judges, each can give separate verdicts.

9. The "Civil Law" system does not follow precedents. In contrast, the "Common Law" system follows precedents.

10. In the "Civil Law" system, courts cannot declare any provision unconstitutional. In contrast, in the "Common Law" system, courts can declare any provision unconstitutional.

11. In the "Civil Law" system, the judgments given by judges can be criticised. In contrast, in the "Common Law" system, judicial verdicts cannot be criticised.

12. In the "Civil Law" system, legal training in the legal profession is controlled by the state. In contrast, in the "Common Law" system, the legal profession has a general feature, influenced by automatic training.

Now, let us see which judicial system is practised in Bangladesh? From the above discussion, it is clear that the British once turned many regions into colonies and, based on their customs and rules, established their legal systems there. From this perspective, it appears that Bangladesh was one of their colonial regions, and they formulated laws here according to their own norms.

Even today, most of the laws in Bangladesh’s legal system are of British origin and are still in force. For example, the Evidence Act, 1872; Penal Code, 1860; Civil Procedure Code, 1908; Transfer of Property Act, 1882, etc.

Considering all aspects, it is evident that the features observed in the common law system are also found in the judicial system of our country. Additionally, there are religious personal laws for various communities and provisions for settlement in some laws including the "Arbitration Act."
Therefore, it can be said without a doubt that the common law system primarily exists in our country, alongside the presence of religious and civil legal systems.

Md JR Khan Robin: Advocate, Appellate Division, Supreme Court of Bangladesh