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Civil Law, Common Law & Islamic Law System

Introduction

Executive Summary

Law is defined as a system of rules that guide people in a society on how to relate with each other and are usually enforced by predetermined institutions. In this research paper, three types of law systems are handled; Civil law, Common law and Islamic law. All three sources of law are used to govern people in different countries based on their society, colonialists, beliefs and way of life. However, there are differences in the way by which judges come up with the final verdict for all three systems. In civil law, the judgment is achieved by using a predefined set of statutes and codes for reference. This is different from the common law in which judgment is dictated by the customs of the society resulting in variations on a case-to-case basis (“Difference between Civil and Common Law”). On the other hand, Islamic law has all its judgments based on the interpretation of the Qur’an (“Sharia – Wikipedia.”). Therefore, strict laws from ancient times of Prophet Muhammad are also passed on to the modern Muslims.

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The Civil Law

History of the Civil Law

Civil law is a system of law that is predominant in the world as a whole and has backing in Roman law. This ruling system is usually codified and the current coding dates from the nineteenth-century codification movement (“Civil law (legal system) – Wikipedia”). In some countries, the Roman law became positive law while, in other countries, the acceptance came through its’ processing by legal theorists. The term “civil law” has its origin in English-speaking countries, but scholars of comparative law usually categorize civil law into four groups. These groups were determined and include the following: The French, Chinese, Scandinavian, and German civil law (“Civil law (legal system) – New World Encyclopedia”).

Hughes Aircraft Systems International v. Air Services Australia (1997) 146 ALR 1: Federal Court of Australia – 30 June 1997.

Case Facts: Hughes Aircraft Systems International (Californian Company) happened to be the unsuccessful tender in the bid for the TAAATS award that was released by Air Services Australia. Thompson Radar Corporation (“Thompson”) was the successful tender (“HUGHES AIRCRAFT SYSTEM S INTERNATIONAL).

As to the tender process, Thompson, Hughes and Air had entered and were legally bound by a contract. Initially, Air recommended Hughes as the preferred contractor, but after the tender process underwent revisions and Thompson had reduced the price, Air recommended Thompson as the preferred contractor.

Based on the contract they had entered into, Hughes claimed that Air ought to conduct the process of tender for the TAAATS award in a way that ensures there is the equity between Thompson and Hughes. The issue that arose is whether there was an implied term of fair dealing and good faith in the case.

Finding: The decision of the court was that CAA acted in breach of its implied duty to fair dealing and good faith by failing to adhere to the request for tender.

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Impact: Since Courts expect a certain degree of fairness in contracts, there is the formation of a duty upon the parties of fair dealing in contracts performance and good faith. The fact that the process of tender is covered by the duty, there should be compliance with the process of tender agreed upon. The verdict of the case is universal, and the writer agrees to it as a just ruling.

The Common Law

History of the Common Law

The common law is based on tradition, custom, and precedent and depicts a society with cooperation and harmony between people who have mastered living in accordance with the governing laws and norms (“Common law – New World Encyclopedia.”). This law system was carried along the continent by the British colonialists, and afterward, the law was adopted into the law systems of their colonies. The common law depends on the rulings which were made earlier on, to conclude cases of a similar nature. This is what makes the common law be regarded as ‘the law of the people’ and not ‘the law of the ruler’ (“Common law – New World Encyclopedia.”). The common law is applied in cases where one party seeks compensation due to the activities that have caused harm to him by another party.

Hadley v. Baxendale

This is a landmark contract case that holds that consequential damages suffered from a breach of contract that is not foreseeable cannot be recovered (“Hadley v Baxendale”). The case involved a mill (City Steam-Mills) that contracted with a courier (Baxendale) in order to deliver a broken crankshaft to a machinist (W. Joyce & Co.) for a new one. The courier was late with the delivery and the mill got their crankshaft back extremely late which caused the mill to make losses due to business closure. Feeling let down by this act of late delivery, Hadley tried to get extra damages by suing the courier. The courier filed an appeal confirming he was not aware of any risk of loss by the mill in case of late delivery of the crankshaft (“Hadley v Baxendale”).

Issue: Since the courier could not possibly know that if he made a late delivery the mill would make losses, the damages were not foreseeable to the courier; therefore, the mill could not be awarded the damages. Despite the fact that the case happened in England many years back, its rule of law is still applied in related contract cases currently. This is the essence of the common law as a good ruling will always have great importance in the future by easing ruling on similar cases. Therefore, a lot of time that would have been wasted in many court sittings is saved for other cases.

Judgment: The judge’s decision was that the claimed damages were unforeseeable. Therefore, Hadley could not be compensated for the damages suffered. In addition, Hadley had not given any conditions initially (“Hadley v Baxendale”). The argument is that just because a company takes a machine part for repair, does not obviously occur that it would make losses if the part was not delivered on time. The writer agrees with the ruling of the case since the judgment is based on precedent on the common-law basis. The judge’s ruling that the courier was not liable for damages to the mill is in accordance with common law considering the terms of the contract were not provided. Therefore, justice is considered to have prevailed in the ruling.

The Islamic Law

History of the Islamic Law

It is also known as Sharia law which was created by local Islamic nationals (“Sharia – Wikipedia.”). Sharia law is taken as a way by which the will of the Muslim faith can be expressed to ensure a harmonious relationship exists. There are two fundamental sources that led to the realization of the Sharia law within the Muslim religion. These sources are the Qur’an and the proclaimed holy life of their prophet Mohammad (“Sharia – Wikipedia.”). The link of the Sharia law with Allah (God) and Prophet Muhammad comes with an inner push that doing what is written in the way to a better living in a society. Prophet Muhammad, initially a trader, organized the Muslim faithful into one religion when he started claiming to receive revelations from Allah. This made Islam the dominant force in the Arabian Peninsula (“Sharia – Wikipedia.”). After his death, the Qur’an was formed from the revelations.

The Case of Safiya Hussaini, 33, 2002-MAR: NIGERIA

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Safiya Hussaini was convicted of adultery. After the conviction, she was sentenced to death by stone. Fortunately, her sentence was deferred until her year-old daughter finished breastfeeding. Later on, she filed an appeal for her conviction, and her cousin went ahead to confess to the police of fornicating with her. In order for a witness to be used in Sharia law, there should be four and above witnesses (“Punishment for Non-Marital Sex in Islam.”). This was not the case here because there were only three policemen who came to witness the confession of adultery. Safiya’s lawyers confirmed that conception and birth under the Islamic law can occur until the seventh year (“Punishment for Non-Marital Sex in Islam.”). Only twenty-four months before her child was born, she and the husband had not yet separated. This argument tried to imply that the child in question may just happen to be the husbands’ daughter. The attorney general made a statement on the conviction that society was injured by the act of the woman. This meant that it was a risk considering that other women may copy this behavior if she is released. The court of appeal later reversed the judgment set for her by the lower court. It ruled that Sharia law was introduced in the province after the act had already happened and adultery was yet to become a criminal offense (“Punishment for Non-Marital Sex in Islam.”). Courtesy of a strong international interest in her case, she was spared and re-married later in the year to a local entertainer in her village. The Sharia law is extremely strict and does not consider the rights of humanity in its ruling. Though, the writer is satisfied with the ruling because of mediation by lawyers and the international society.

Approach to the Topic

Civil law, common law, and Islamic law are all ways in which different societies try to maintain law and order. Without such laws, society would lose meaning and harmony. This would result in violence among the people due to cases like uncontrolled civil war and buttery. For that reason, I carefully selected cases that expose the relationship between one person and another, and how this can affect society as a whole. As a matter of fact, under civil law, I use the case law between Hughes Aircraft and Australian Air. The idea here is to emphasize adherence to any form of contract set between two or more individuals so that unity prevails. There would be no agreement without unity, and this would lead to unnecessary misunderstandings. The common law helps to promote virtue within society. This is shown in the case between Hadley and the courier where the millers wanted compensation for late delivery. The real sense is that this was an unfair move which is unacceptable in society. The main aim of the Islamic case affecting Safiya is to show that verdicts should not be so cruel and inhuman. It is not human to sentence a woman to death because of a mere act of adultery. The judges should ensure their judgment is fair and as human as possible because all human beings are equal.

Conclusions & Recommendations

The law system used in society shows the people it is composed of, their behavior and preferences. For all reasons whatsoever, the main aim is to ensure that there is peace in society. The discussions explain the procedural sequence of arriving at a judgment through the application of civil law, common law and Islamic law. This has contributed to the understanding of the importance of law in society. The knowledge of associating with one another and remaining safe is also imparted to us by the appreciation of such facts. Therefore, the law set forth in society should be obeyed so that we maintain a healthy relationship with others and avoid risky endings.

References

“Civil law (legal system) – New World Encyclopedia.” New World Encyclopedia.Org. N.p., n.d. Web.

“Civil law (legal system) – Wikipedia, the free encyclopedia.” Wikipedia.Org. N.p., n.d. Web.

“Common law – New World Encyclopedia.” New World Encyclopedia.Org. N.p., n.d. Web.

“Difference Between Civil and Common Law | Difference Between…” difference between.net. N.p., n.d. Web.

“Hadley v Baxendale – Wikipedia, the free encyclopedia.” Wikipedia.Org. N.p., n.d. Web.

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“HUGHES AIRCRAFT SYSTEM S INTERNATIONAL v AIR SERVICES AUSTRALIA…”Mosaic Projects.Com. N.p., n.d. Web.

“Punishment For Non-Marital Sex in Islam.” Religious Tolerance.Org. N.p., n.d. Web.

“Sharia – Wikipedia.” Wikipedia.Org. N.p., n.d. Web.

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