Sources of law and legal traditions
Given the distinctive features of each of these nations and the powerful historical forces that have shaped them, it is axiomatic that the sources of law will reflect this background.
All, of course, have legislation as a primary source of law and a hierarchy of laws commencing with a Constitution as the Grundnorm, then codes and statutes enacted by national legislative bodies, followed by regional or state laws enacted by provincial or state legislatures or councils. Executive bodies can also act as a source of laws in some nations, especially in the civil law tradition. In China, for example, the State Council's administrative regulations are one of the mostimportant sources oflaw. In Japan, these can take the form of cabinet orders, ministerial ordinances, and administrative guidance, while in Indonesia there are presidential, ministerial, governmental and regional regulations which have resulted in the need for a piece of legislation to set out and resolve the competing status between the different sources of law. SimilarlyinVietnam, its 12 different legal instruments can result in inconsistencies, overlap and contradictions, so to reduce ambiguity and uncertainty Vietnam enacted its Law on Promulgation of Legal Instruments. In the same vein China promulgated its Legislation Law.The role for judicial decisions does vary depending on whether there is a comÂmon law foundation as a legacy of British colonisation, in which the operation of binding precedent (stare decisis) is required and in which judges in appellate courts can assume a law-making role. Brunei, Malaysia and Singapore operate under stare decisis. Where the nation employs a civil or socialist system, judiÂcial decisions may be allotted degrees of persuasiveness. In China, cases which have been decided and published by the Supreme People's Court are considered â€?authoritative', Withjudgments rendered as collective opinions of the collegiate panel.
Similarly, in Japan, Korea and Taiwanjudicial decisions of their Supreme Courts maybe accorded a de facto binding status in systems where career judges may defer to the reasoning of higher courts, even to aid career prospects. While this pattern reveals convergence between the civil and common law methodolÂogy, the authors writing on Japan note that without a formal practice of stare decisis, case precedent is less certain, giving rise to examples of â€?lower courts flouting the precedent of higher courts'23 and making the status of cases more contested than in common law systems. In the socialist systems of China and Vietnam, the role of legal interpretation is reserved for the Standing Committees of the National People's Congress; however in China its Standing Committee has allowed the Supreme People's Court to issue various forms of judicial interpreÂtations to assist in the application of law by provincial courts. This may include replies to questions submitted by a lower court on which law and interpretaÂtion thereof should be applied in a case before the lower court. This would be impossible in a common law system.Academic writing or commentary has a role as a source of law in the nations operating within a civil law tradition. In Japan, for example, academic commenÂtary is particularly strong, while in China it is an indirect source, in the sense that prominent scholars may be consulted when disputes are being adjudicated or legislation is drafted.
Custom, as norms that formed naturally in a culture over time, is also a recognised source of law, particularly for commercial and civil disputes in China, Hong Kong, Korea and Taiwan (in the latter country it is expressly excluded from criminal cases), whereas in Brunei, Malaysia and Singapore custom acquires the force of law only when incorporated through statute. In Indonesia, adat has continued as an independent and separate source of law which has been influenced by all the religious traditions, including animism, that have had a role over the last two millenniums.
In the nations with significant Muslim populations, Islamic laws and courts have Sharia as a source of law. Although the Sharia has the Quran and the Sunnah as its primary sources of law, which is extended by fiqh (Islamicjurisprudence and legal methodology) to comprise its secondary legal sources, several counÂtries, including Brunei and Malaysia, have these condensed into statutory form so that the personal, religious, evidentiary and commercial laws applicable to Muslims are now statutory-based. In Indonesia the applicable parts of Sharia (referred to in that country as â€?Syari'ah') have been put into, or collated into, a kompilasi (compilation) which was adopted as a Presidential Instruction (that is, not as a statute, as the Quran and the Sunnah remain the authoritative sources). The kompilasi is to be used for the guidance of judges in Indonesia's Islamic courts. The enacted law is to be supplemented by fatawa, legal rulings made by ulama (religious scholars) in Indonesia or by muftis and their majlis (religious councils) in Brunei and Malaysia. In these three nations and in the Philippines and Singapore, the laws derived from Sharia only apply to Muslims.
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