Post on 10-May-2023
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Legal Studies in English
language
Assistant Professor
Dr. Fuad Shehab SHYYAB
JADARA UNIVERSITY
2012-2013
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Course Description
Legal terminology is a set of special words, terms and expressions
used in connection with law as one of the branches of social sciences.
The purpose of this course is to provide students with general law
terms as well as with specialized legal terminology.
This course aims at help students to achieve and demonstrate a
major legal terminology and to learn these skills: listening, reading,
writing and speaking. So, students have to enhance their abilities of
learning legal terminology and to contextualize the terms in order to
know how lawyers, judges, and others use them.
Specifically, this course designed to educate students to be familiar
with the basic terminology of the legal profession and to understand
and communicate with legal language.
Finally, this course will mainly help lawyers (policemen, judges,
etc.) and law students, whom involved in studying these branches of
law, to obtain a good background needed to prepare all the documents
used in a lawsuit.
Course Outline
This course is organized as follows: Part one concentrates on the
classification of law whereas Part two is concerned with the major legal
systems in contemporary world. Finally, the last part goes on dealing
with the Jordanian legal system.
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Learning Outcomes
After completing the course, students have to develop an
awareness of the legal vocabulary and explain fundamental legal
concepts, procedures, terminology, and current issues in law.
Students who successfully complete this course will be able to spell
and pronounce, as well as define and understand, legal terms through
practical application. They will learn the terminology and definitions,
synonyms, pronunciation and usage in the different areas of law.
The student will also be able to present key legal English
terminology in short reading passages.
Therefore, by the end of this course, students should be able to:
recognize the different areas of law, understand the usage of legal terms
in legal documents, and use correct legal terms in verbal and written
communications.
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Contents
INTRODUCTION: CONCEPT OF LAW
PART ONE : CLASSIFICATION OF LAW
Chapter 1 : Public law
Section 1 : Public international law
Section 2 : Constitutional law
Section 3 : Administrative law
Section 4 : Financial law
Section 5 : Penal law or Criminal law
Section 6 : The law of criminal procedures
Chapter 2 : Private law
Section 1 : Civil law
Subsection 1 : Law of contract
A) Definition of contract
B) Formation of contract
C) Some nominated contracts
D) Breach of contract and discharge
E) Contractual liability
Subsection 2 : Tort law
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Section 2 : The law of civil procedures
Section 3 : Labor law
Section 4 : Commercial law
Subsection 1: The traders
Subsection 2 : Maritime law
Subsection 2 : Air law
Subsection 4 : Company law
Paragraph 1: The notion of partnership and company
Paragraph 2: The legal personality
Paragraph 3: Important terms of company law
Paragraph 4: The companies in Jordanian law
PART TWO : THE MAJOR LEGAL SYSTEMS IN CONTEMPORARY
WORLD
Chapter 1: The civil law system
Chapter 2 The common law system and equity
Chapter 3 The communist law system
Chapter 4 The Islamic law system
PART THREE : JORDANIAN LEGAL SYSTEM
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INTRODUCTION : CONCEPT OF LAW
What is law?
A definition: law is the system of control (i.e. a set of rules) through
which society operates. Law declares how we must behave and consists of
those rules which are enforced through the legal system (particularly the
courts): citizens must obey or suffer a penalty. Nevertheless, the system is
more complex in reality as the ‘rules’ are affected by social, economic,
political and international considerations. And, there are differences between
law and justice, and law and morality, and between law as an idea and law as
a legal system.
Law is a system of rules and guidelines which are enforced through
social institutions to govern behavior. Laws are made by governments,
specifically by their legislatures. The formation of laws themselves may be
influenced by a constitution (written or unwritten) and the rights encoded
therein. The law shapes politics, economics and society in countless ways and
serves as a social mediator of relations between people.
Law also raises important and complex issues concerning equality,
fairness, and justice. "In its majestic equality", said the author Anatole France
in 1894, "the law forbids rich and poor alike to sleep under bridges, beg in the
streets and steal loaves of bread." Writing in 350 BC, the Greek philosopher
Aristotle declared, "The rule of law is better than the rule of any individual.
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Part one : Classification of law
There are four different classifications of law.
1. Substantive laws ver-sus. Procedure laws- Substantive law is the
substance that makes up a law. It is the meaning of a law that explains what
you can and cannot do. For example the law states that you cannot murder
another human being unless you were in self defense, you were under duress
or if you were drugged by another person. Unlike substantive law, procedure
laws are just the steps that must take place when filing a lawsuit against
another party.
2. Public law vs. Private Law- Public law simply means that the
government is involved. Public law is any law that has to do with the
constitution and the public. This type of law normally involves a criminal suit
were the government is prosecuting a citizens for a crime they allegedly
committed. Private laws are laws that do not involve the government, and are
laws that allow one private entity to sue another private entity in a civil
lawsuit.
3. Criminal law vs. Civil Law- Criminal law was created to protect the
public from the government or from themselves. Criminal laws were created
so that the government could not prosecute individuals without due process
and so that the public could protect themselves from each other. Civil law are
cases where one or both parties are looking for compensation instead of jail
time.
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4. Common law vs. Civil law countries- Common law countries
prosecute the concept of "Stare Decisis" meaning, let the decision stand.
This means that these countries such as the United States of America
make decisions based on precedent. Unlike common law countries, civil
law countries do not rely on precedent but instead prosecute lawsuits
on a case to case basis without looking at how past cases had been
decided.
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Chapter 1 : public law
Section 1 : Public international law
The public international law is a body of legal rules that organize
the relationships among states and determine the rights and duties of
each at time of peace or of war.
This branch of law deals with such matters as the formation and
recognition of states, acquisition of territories, war, the law of sea and
space, treaties, treatment of aliens, human rights, international crimes,
pacific and judicial settlement of disputes and the legal responsibility of
states in their conduct with each other.
Public international law has three principal sources: international
treaties, international custom and general principles of law.
Section 2 : Constitutional law
This branch of law defines the form of the state, the system of
government, the organizational structure of government (the powers)
and the relation among these powers which include the legislative, the
executive and the judiciary.
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It, also, illustrates the interpretation of the constitution, emergency
powers, constitutional amendments, etc. In addition, it defines the
rights and duties of citizens and guarantees various freedoms,
including those of worship, opinion and association.
Section 3 : Administrative law
Administrative law is considered a branch of public law. This
branch is the body of law that governs the activities of administrative
agencies of government. Government agency action can include
rulemaking1, adjudication or the enforcement of a specific regulatory
agenda.
This branch defines the powers of an executive nature that are
conferred by legislation on government ministers, public and local
authorities.
Section 4 : Financial law
The term financial law refers to a body of legal rules that govern
public funds of the state, its various revenues, such as taxes, dues, loans
and the ways of collecting any spending such funds. In short, the rules
which organize the budget and the taxes.
1 rule-making refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.
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The subjects of financial law are the budget, the taxes, public loans,
the revenues of the state and the expenses.
Section 5 : Penal law or Criminal law
Criminal law is the body of legal rules which defines the crimes
and imposes penalties or the type of punishment on them. It commands
abstention from certain acts and threatens punishment. It covers the
whole range of criminal offences from minor contraventions to
misdemeanors and felonies.
A crime is an act or omission which is prohibited by criminal law.
It is a wrong against all of society, not merely against the individual
victim alone.
Crime's elements
A fundamental principle of Criminal Law is that a crime consists of
both a mental and a physical element. The mental element is the Mens
rea2, which means a person's awareness of the fact that his or her
conduct is criminal, and the physical element or actus reus which means
the act itself.
2 Latin for a guilty mind, or criminal intent in committing the act.
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In other words, an act alone could not create criminal liability
unless it was accompanied by a guilty state of mind.
"The act does not make a person guilty unless the mind is also
guilty". Thus, in jurisdictions with due process, there must be an actus
reus accompanied by some level of mens rea to constitute the crime with
which the defendant is charged. As a general rule, criminal liability
does not attach to a person who acted with the absence of mental fault3.
In civil law, it is usually not necessary to prove a subjective mental
element to establish liability for breach of contract or tort, for example.
However, if a tort is intentionally committed or a contract is
intentionally breached, such intent may increase the scope of liability as
well as the measure of damages payable to the plaintiff.
Therefore, mens rea refers to the mental element of the offence that
accompanies the actus reus. In some jurisdictions, the terms mens rea and
actus reus have been replaced by alternative terminology. In Australia,
for example, the elements of the federal offences are now designated as
"fault elements" or "mental elements" (mens rea) and "physical elements"
or "external elements" (actus reus). This terminology was adopted to
3 The exception is strict liability crimes.
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replace the obscurity of the Latin terms with simple and accurate
phrasing.
Actus reus : The voluntary and wrongful act or omission that
constitutes the physical components of a crime. Because a person cannot
be punished for bad thoughts alone, there can be no criminal liability
without actus reus.
Sometimes called the external element or the objective element of a
crime, is the Latin term for the "guilty act" which, when proved beyond
a reasonable doubt in combination with the mens rea, "guilty mind"
Hence, the general test of guilt is one that requires proof of fault,
culpability or blameworthiness both in behaviour and mind.
Jordanian criminal law
The criminal code adopted in 1956, which had been amended
many times, contained the bulk of the country's criminal law. In
addition, certain codified civil statutes also prescribed penalties for acts
such as libel, adultery, and publication of material endangering the
security of the kingdom.
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Individuals could not be punished except for acts made criminal
by virtue of penalties prescribed by law. Other than where specified, a
person also could not be punished for committing a criminal act in the
absence of criminal responsibility or intent, both of which were defined
by the code. As a safeguard of personal liberty, the government had the
burden of proving both the defendant's commission of the act and the
admissible intent of the defendant before guilt could be established.
The criminal code, in traditional French form, divided criminal
offenses into three categories according to the severity of the applicable
punishments. In English common law these categories equated roughly
to felonies, misdemeanors, and minor violations. Punishments for
felonies ranged from death by hanging to imprisonment for periods
ranging from three years to life. Punishments for misdemeanors
included imprisonment for periods ranging from three weeks to three
years and a variety of fines. Minor violations could be punished by
imprisonment for less than three weeks, small fines, or reprimands by
the court.
In cases involving misdemeanors or minor violations, a judge also
could invoke preventive measures including detention for psychiatric
examination, forfeiture of material goods, or closure of a place of
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business. The criminal code provided for minimum penalties for all
major infractions rather than relying on the discretion of the courts.
The death penalty was authorized for murder, arson of an
inhabited building, assassination of the king (or attempts on his life),
and a broad range of serious crimes defined as threats to the security of
the state. These latter offenses included acts such as treason, espionage
on behalf of an unfriendly foreign power, and armed insurrection.
Imprisonment for life was imposed for such felonies as lesser
crimes against national security, homicide during commission of a
misdemeanor or that resulted from torture, and the more serious forms
of theft. Shorter imprisonment was prescribed for these same offenses if
mitigating circumstances warranted. Such punishment also was
authorized for terrorist activity, membership in subversive
organizations, counterfeiting, forgery of official documents, and
abduction.
Misdemeanors included such offenses as gambling in public
places, bribery, perjury, simple forgery, slander, embezzlement, assault
and battery, and disturbing the peace. The influence of sharia was still
evident in the imposition of prison sentences for desertion of a child,
abortion, marrying a girl under the age of sixteen, openly ridiculing the
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Prophet Muhammad, and breaking the fast of Ramadan. Sharia also
was important in the criteria for justifiable homicide. No penalty was
imposed for the immediate killing of someone who defiled a person's or
a family's honor.
Minor violations covered by the code included traffic violations,
seeking redress for a crime without recourse to civil authorities, public
drunkenness, and violations of administrative regulations such as
licensing and safe housing requirements. These infractions were
punishable with or without proven intent. Most minor violations
resulted in fines being assessed against the offender.
Section 6 : The law of criminal procedures
Criminal procedure law is a group of legal rules that indicate the
procedures that must be taken from the time of the commitment of a
crime till the time of inflicting punishment on the wrongdoer.
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Chapter 1 : Private law
Section 1 : Civil law
Civil law, as opposed to criminal law, is the branch of law dealing
with disputes between individuals or organizations, in which
compensation may be awarded to the victim. For instance, if a car crash,
victim claims damages against the driver for loss or injury sustained in
an accident, this will be a civil law case. Also, the law relating to civil
wrongs and quasi-contract is part of the civil law.
The objectives of civil law are different from other types of law. In
civil law there is the attempt to right a wrong, honor an agreement, or
settle a dispute. If there is a victim, they get compensation and the
person, who is the cause of the wrong, pays, this being a civilized form
of revenge.
There are two major branches of civil law: contract law and tort
law. The law of contract and the law of tort are both concerned with
rights and obligations under the civil law. The main difference is that in
contract the obligations are created by agreement between the parties
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and owed by one party to another, whereas in tort the obligations are,
in general, owed to the whole world. In contract, the obligations are
fixed by the terms of the agreement between the parties; in tort, the
obligations are fixed by the law. The main similarity between contract
and tort is that the usual remedy is an action of damages.
A breach of contract may also constitute a tort, either against the
other contracting party or against a third party.
Subsection 1: Law of contract
A) Definition of contract
B) Formation of contract
C) Some nominated contracts
D) Breach of contract and discharge
E) Contractual liability
A) Definition of contract
A contract is an agreement by which one or several persons bind
themselves, towards one or several others, to transfer, to do or not to do
something4. A contract is created, subject to any special formalities that
4 Article 1101 of French civil code
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may be required by law for its conclusion, from the moment that two
persons have exchanged two concordant intentions5.
In its simplest terms, a contract is any agreement that is
enforceable in a court of law6.
B) Formation of contract
There are four essential requisites for the validity of an agreement.
The first is the consent of the party who binds himself. More
clearly, the first element is the Mutual Consent which means exactly a
"Meeting of the Minds". The parties to the contract have a mutual
understanding of what the contract covers. For example, in a contract
for the sale of a "mustang", the buyer thinks he will obtain a car and the
seller believes he is contracting to sell a horse, there is no meeting of the
minds and the contract will likely be held unenforceable. Also, there is
no valid consent, where the consent was given only by error, or where it
was extorted by duress or abused by deception.
The second element is the capacity to contract. Any person may
enter into a contract, unless he has been declared incapable of it by law7.
5 Article 89 of Egyptian civil code 6 H.-A. TARAWNEH, LEGAL TERMINOLOGY, Amman, Dar Wael, 2003, p. 82. 7 Article 1123 of French civil code, article 116 of Jordanian civil code
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The third element is a definite object which forms the subject-
matter of the undertaking. "For a contract to be valid its object must
meet certain requisites. These include the existence of the thing or
feasibility of the performance at the contract formation stage, certain
qualities of the object, ie it must be in commerce, it must be appropriate
to law and society, it must be in existence, and the performance must be
legally possible, certain or ascertainable".
The fourth element is a lawful cause in the obligation. "The cause
in civil law constitutes the determinative reason or motive of the
contract and is considered a necessary element for the existence of a
contract in most jurisdictions.
The notion of cause in civil law theory does not denote a causal
connection but rather the purpose which the parties have in mind when
they enter into the contract. This purpose, however, is not the personal,
and probably unique, motive which each party may have to pursue a
certain specific transaction, but rather it is the general objective and
standardized motive which any party has for each contractual type.
Thus, in any purchase of real property the cause for the purchaser is the
seller’s delivery of title in the real estate in question"8.
8 Julian HERMIDA, Convergence of civil law and common law contracts in the space field: http://www.julianhermida.com/dossier/dossierpubhk.pdf
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C) Some nominated contracts
Nominated contracts are those contracts that have been named in
the civil code and that are thus generally regulated whereas innominate
contracts or contracts without title are those which have not received an
express treatment in the civil code or in another statute.
The existence of nominated contracts derives from the Roman law
need to name the contract when an action was filed. In modern civil law
this classification has become obsolete and it entails no consequences at
all, especially when most civil codes contain a general principle
establishing that a contract is to be analysed and considered depending
on its actual terms and regardless of the name that the parties gave to it.
► A sale is an agreement by which one person binds himself to
deliver a thing, and another to pay for it9. According to article 465 of
Jordanian civil code the sale is the transfer of ownership of property or
financial right for consideration10.
► The gift is the bestowal without consideration of ownership of
property or property right upon another person during the lifetime of
the owner11.
9 Article 1582 of French civil Code
عوض لقاء مالي حق او مال تمليك القانون المدني األردني البيع من 465 المادةحسب 11 Article 557 of the Jordanian civil code.
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► An exchange is a contract by which the parties give to each
other one thing for another12.
► Contracts of hiring : There are two kinds of contracts of hiring :
One for things, And one for work13. The hiring of things is a contract
by which one of the parties binds himself to have the other enjoy a thing
during a certain time, and at a charge of a certain price which the latter
binds himself to pay him14.The hiring of houses and movables is called
a lease for rent15.
► The hiring of work is a contract by which one of the parties
binds himself to do something for the other, at a charge of a price
agreed between them16.
According the article 658 of Jordanian civil code the lease is the
bestowal by the lessor upon the lessee of an intended usufruct of the
leased thing for a specified period of time for a certain consideration.
► The Partnership According to article 582 of Jordanian civil code
the partnership is a contract by virtue of which two or more persons
each undertakes to contribute in a financial project by providing his
12 Article 1702 of French civil Code 13 Article 1708 of French civil Code 14 Article 1709 of French civil Code 15 Article 1711 of French civil Code 16 Article 1710 of French civil Code
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share of property or work in order to exploit that project and share the
loss or profit that results there from17.
D) Breach of contract and discharge
One party cannot, by his wrongful act, bring a contract to an end
without the consent of the other. Breach of contract means a failing to
perform any term of a contract, written or oral, without a legitimate
legal excuse. This may include not completing a job, not paying in full
or on time, failure to deliver all the goods or any act which shows the
party will not complete the work ("anticipatory breach.").
Breach of contract is one of the most common causes of law suits
for damages and/or court-ordered "specific performance" of the
contract.
A breach of contract occurs where a party to a contract fails to
perform, precisely and exactly, his obligations under the contract.
Discharge of contract18 : first, Discharge can occur by
performance. The general rule is that a party is not discharged unless
and until he has entirely performed his contractual obligation. But the
Discharge can occurs by agreement: it is open to contracting parties to
المشروع ذلك الستثمار عمل من او مال من حصته بتقديم مالي مشروع في منهم كل يساهم بان اكثر او شخصان بمقتضاه يلتزم عقد الشركة
.خسارة او ربح من عنه ينشأ قد ما واقتسام18 W. T. MAJOR, BASIC ENGLISH LAW, M. MACMILLAN, second edition, 1990, p. 179.
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enter into a subsequent agreement to bring about the discharge of the
original contract. Also, Discharge can occur by frustration. If so, the
frustrating event brings the contract to an end forthwith automatically.
Both parties are, from that moment, discharged from any future
obligation to perform. Contractual obligations which occrued before the
occurrence of the frustrating event, however, are not affected and
remain binding19.
E) Contractual liability
Contractual liability is defined as liability that does not arise by
way of negligence, but when a contracting party fails to perform his
obligations assumed under the terms of a contract. Otherwise known as
a breach of contract, contractual liability exists when there is a contract
that voluntarily binds parties together.
It's basically result from a promise that may be upheld in court. For
example, say you agree to build someone a deck for $ 600 and collect $
300 as a retainer prior to starting the job. In the meantime, a higher
paying project comes along and you never show up to put on the deck.
The other party can take you to court and collect the original $300 that
19 W. T. MAJOR, BASIC ENGLISH LAW, M. MACMILLAN, second edition, 1990, p. 184.
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they paid you. You were in breach of contract and therefore they had a
justified contractual liability claim.
Subsection 2 : Law of tort
● The word tort comes from the Latin term torquere, which means
"twisted or wrong."
● A body of rights, obligations, and remedies that is applied by
courts in civil proceedings to provide relief for persons who have
suffered harm from the wrongful acts of others. The person who
sustains injury or suffers pecuniary damage as the result of tortious
conduct is known as the plaintiff, and the person who is responsible for
inflicting the injury and incurs liability for the damage is known as the
defendant or tortfeasor.
● Three elements must be established in every tort action.
First, the plaintiff must establish that the defendant was under a
legal duty to act in a particular fashion.
Second, the plaintiff must demonstrate that the defendant
breached this duty by failing to conform his or her behavior
accordingly.
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Third, the plaintiff must prove that he suffered injury or loss as a
direct result of the defendant's breach.
● Unlike actions for breach of contract, tort actions are not
dependent upon an agreement between the parties to a lawsuit. Unlike
criminal prosecutions, which are brought by the government, tort
actions are brought by private citizens. Remedies for tortious acts
include money damages and injunctions (court orders compelling or
forbidding particular conduct). Tortfeasors are subject to neither fine
nor incarceration in civil court.
● The law of torts serves four objectives. First, it seeks to
compensate victims for injuries suffered by the culpable action or
inaction of others. Second, it seeks to shift the cost of such injuries to
the person or persons who are legally responsible for inflicting them.
Third, it seeks to discourage injurious, careless, and risky behavior in
the future. Fourth, it seeks to vindicate legal rights and interests that
have been compromised, diminished, or emasculated. In theory these
objectives are served when tort liability is imposed on tortfeasors for
intentional wrongdoing, Negligence, and ultra hazardous activities.
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Section 2 : The law of civil procedures
A body of rules that deals with the judiciary organization in terms
of the formation of courts and litigation, judges and their assistants and
the rules of jurisdiction.
This branch of law determines how litigation and recourse to
justice and proceeding of litigation before courts until pronouncing a
decree that settle conflict, and defines the ways of appeal that decision
like (Appeal and intercept, re-trial and cassation).
Section 3 : Law of evidence
This law contains the rules that determine the acceptable means by
which the facts can be proved in the court. It is the law that comprises
all the rules governing the presentation of facts and proof in
proceedings before the court, including in particular the rules
governing the admissibility of evidence and the exclusionary rules.
Section 4: Labor law
Labour law embodies the legal rules regulating labour relations
among workers and employer.
Workers are the people who work under the direction and control
of another (the employer).
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Employers: the people who engage others (the workers) to work
under their direction and control in return for a salary.
The relationship between a worker and an employer is governed
by the express and implied terms of the contract and by statutory rules
that the contract cannot exclude.
Section 5: Private international law
It is a part of the national law of every country that establishes
cases involving a foreign element. Sometimes, national courts decide
whether or not they have jurisdiction to hear the case and whether or
not to recognize a foreign judgment.
Section 6: Commercial law
The term commercial law describes a wide body of laws that
govern business transactions. It can also be defined as a body of rules
that apply on traders and commercial acts. Traders are those who carry
out commercial instruments and who make this their usual profession20.
Under the Article 1 paragraph 2 of the Jordanian Trade code, this law
contains on one hand, the rules that must be applied to commercial acts
regardless of the quality of the person making them and on the other
20 Article L.121-1 of French commercial code
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hand, the rules governing those who practice business acts as a regular
profession.
Afterwards, according to Article 6 of Jordanian commercial code
"The following acts are considered, by the virtue of its nature, acts of
overland trade
1. All purchases of goods (commodities) and other chattels (material
movables) in order to sell it with profit, either in kind or after having
worked and manufactured it;
2. All purchases of these chattels with intent to hire them or lease
the same with intention of sub-leasing them.
3. The sale, rent or sub-leasing of these purchased or leased
properties in the manner prescribed in the foregoing
4. Money-changing activities, financial dealings and all public or
private banking transactions.
5. Supply of materials
6. Manufacturing activities even if these activities were associated
with an agricultural investment unless the transforming of material is
done through simple manual work
7. Land, air and water surface transport (carriage by land and sea)
8. Commission agency and Brokerage
9. Insurance in all types.
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10. Public sites and exhibitions
11. Printing activities (publishing obligation).
12. Public Storage (Public Warehousing)
13. Mining and oil extraction
14. Real Estate activities
15. The purchase of real estate with intent to resell with profit
16. Works or services agency (Agencies providing services)
Also, under the paragraph 2 of this article other acts, by virtue of
their inherent nature can be considered as acts of overland trade if their
qualities and objectives were similar to the previous acts mentioned in
paragraph 1. In other words, activities which may be deemed to be
analogous to the activities herein mentioned in the above paragraph 1,
due to the similarity of their qualities and objectives shall be considered
as commercial activities.
In accordance with the article 7 of the same code, the law also
deems commercial instruments to be
a) all construction undertakings and all purchases of ships,
intended for inland and foreign-going navigation, in order to its
commercially investment or its sale, and all sales of such ships;
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b) All sea shipments, and all purchases and sales of ship’s
tackle such as cordage, sails and foodstuffs;
c) the freighting (chartering) or the transport commitment on
ships and bottomry loans;
d) All contracts relating to maritime trade such as crew wages
and rents and all engagements of seamen for the service of
commercial ships.
Distinction between civil acts and commercial acts:
Strictly speaking, article 6 from J. Commercial Code does not give
a concept of the acts of commerce. In fact, for a long time there has been
no evidence of the dogmatic nature of a pure "act of commerce." So, the
problem arises precisely in respect to acts that are presumed to be
commercial but are not included in the Commercial Code.
To distinguish commercial acts from other acts, some authors rely
on objective criterions because, by principle, it is affirmed that the Code
regulates the acts of commerce "whether or not those who execute them
are merchants.
The doctrine has identified several theories to find the criterion of
commercial acts, the criterion that distinguish commercial acts from
other acts, essentially from civil acts:
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The theory of speculation: The commercial character of a juridical
act resides, for some jurists, in the profit-making purpose. So,
commercial transactions are the activities which are carried on by any
person intentionally to speculate to make profit even though he is not a
trader. In other words, the speculative activities carried out by a person
(though not a trader) with the intent of realizing profit, shall be
considered as a commercial activities.
Theory of circulation: This theory is based on the effects of
juridical act. If the juridical act leads to the circulation of goods and
money, it will be considered as a commercial act.
Theory of profession: certain activities shall be considered as
commercial activities, if it has been practiced within the framework of a
profession, and precisely the person, who engaged in the act, must
possess the quality of trader. In other words, the characterization of an
act as being commercial was made to depend fundamentally on the
persons who engaged in the act. But this principle was advanced with
some reservations, because the Code itself acknowledged the possibility
that an act could be considered commercial even when some of the
interested parties did not possess the requisite "merchant quality."
33
Theory of enterprise: in this theory, the activity must be exercised
as a profession and also as part of a commercial project.
Moreover, it is interesting that the distinction between civil and
commercial acts is important for several reasons. For example, with
regard to traders, commercial instruments may be proven by any means
unless the law specifies otherwise.
Subsection 1: The traders
Shall be deemed a trader:-
1. Every person who works in his own name and for his own
account in commercial activities and has the proper qualification when
taking on such activities as his occupation.
2. Every company which undertakes a commercial activity or has
adopted one of the legal forms stipulated by the Commercial
Companies Law, even if such an activity whereof civil nature.
Moreover, any person who announces to the public, by any
means, about business premises established by him for commerce, shall
be deemed a trader even if he does not take on trade as his normal
profession. The capacity of trader shall be established in respect of any
person who practices commerce under a pseudonym or under the cover
34
of another person's name. The person whose name is apparent shall
also be established to have the capacity of trader.
Subsection 2 : Maritime law
This branch of law relates to the sea and ships and regulates
shipping articles, maritime insurance contracts, maritime liability,
maritime accidents, the responsibility of the ship owner, the
relationship between the ship owner and the shipmaster and so on.
Subsection 2 : Air law
Air law or aviation law is the body of law directly or indirectly
concerned with civil aviation. Aviation in this context extends to both
heavier-than-air and lighter than air aircraft.
Air-cushion vehicles are not regarded as aircraft by the
International Civil Aviation Organization (ICAO), but the practice of
individual states in this regard is not yet settled.
The earliest legislation in air law was a 1784 decree of the Paris
police forbidding balloon flights without a special permit.
Because of the essentially international character of aviation, a
large part of air law is either international law or international uniform
law
35
Subsection 4 : Company law
Paragraph 1 : the notion of partnership and company
According to article 582 of Jordanian civil code21 the partnership is
a contract by virtue of which two or more persons each undertakes to
contribute in a financial project by providing his share of property or
work in order to exploit that project and share the loss or profit that
results there from22.
Because a partnership is a contract, it shall satisfy the four essential
requisites for the validity of any agreement: the Mutual Consent of the
parties who binds themselves, the capacity to contract, a definite object
which forms the subject-matter of the undertaking. Also, every
partnership (firm) must have lawful objects and be formed in the
common interest of the members23. At last, every partnership must have
a lawful cause in the obligation.
21 See the article 1832 of French civil code which define a firm : "A firm is established by two or several persons which agree by a contract to appropriate property or their industry for a common venture with a view to sharing the benefit or profiting from the saving which may result therefrom. It may be established, in the cases provided for by statute, through an act of will of one person alone. The members bind themselves to contribute to losses.
المشروع ذلك الستثمار عمل من او مال من حصته بتقديم مالي مشروع في منهم كل يساهم بان اكثر او شخصان بمقتضاه يلتزم عقد الشركة .خسارة او ربح من عنه ينشأ قد ما واقتسام
23 Article 1833 of French civil code.
36
Moreover, a partnership shall satisfy some specific requisites.
The first requisite is the contributions of each member which form
the capital of the partnership or company. This capital shall be in
money or in that which is legally considered to be money and is used in
dealing and if it shall not be in money its value shall be estimated24.
The second requisite is the participation in the results of the
company, and it means exactly Distribution of profits and losses : the
associates should have the right to share the benefit or profiting from
the saving which may result therefrom. In return, if the company is in a
loss position, the members bind themselves to contribute to losses.
Thus, the members, where necessary, have a commitment to share in
losses.
Also, the rights of each member in the capital of the firm are in
proportion to his contribution at the time of the formation of the firm or
in the course of its existence25. So, the section 587 of Jordanian civil code
provides that the profits and losses shall be distributed as stipulated in
the contract. And if the share of every partner in the profits and losses
24 Article 585/1 of the Jordan civil code
25 Article 1843-2 of French civil code.
37
shall not be specified in the contract, distribution thereof shall be
effected according to the share of every partner in the capital.
It is crucial to remember that this element is a necessary element
without which there cannot have a partnership agreement. That is why
the section 590 of Jordanian civil code provides that if it shall be agreed
in the contract that one of the partners shall not benefit from the profits
of the partnership or share in its losses, the partnership contract shall be
void. But, agreement may be made to exempt the partner who does not
contribute other than his work from losses provided that non wages are
decided upon for his work.
The third requisite is the affectio societatis: The "affectio societatis"
may be understood as a special relationship existing among several
people willing to organize a company26. So, in principle, a company is
founded on a spirit of cooperation between shareholders: an intention
to act in partnership. It is useful to say that neither the Jordanian civil
code nor the French Civil Code have made no express mention of the
notion of affectio societatis. But, the jurisprudence and the doctrine in
both countries recognize the affectio societatis as a third element for the
26 Walter Douglas Stuber, Manoel Ignácio Torres Monteiro and Vera Lúcia Pereira Neto, « Brazil:
Limited Liability Companies And The New Brazilian Civil Code»,
http://www.mondaq.com/x/20017/Corporate+Finance/Limited+Liability+Companies+And+The+Ne
w+Brazilian+Civil+Code
38
validity and for the qualification of a company. Some civil codes have
mentioned it in the definition of partnership. For example the section
2186 of the Civil Code of Québec define the contract of partnership as «
a contract by which the parties, in a spirit of cooperation, agree to carry
on an activity, including the operation of an enterprise, to contribute
thereto by combining property, knowledge or activities and to share
any resulting pecuniary profits ».
Paragraph 2: Legal personality27
In the basic model of the market economy, expounded in any
introductory textbook of economics, the relationship between persons
and things is simple and clear. Persons are subjects of property right,
and things are objects of property right. Persons own things, and things
are owned by persons. There is an absolute divide between persons and
things. If persons own persons, we are back to the slave economy of the
ancient past. If things own persons, we are perhaps trapped in the
world of a science-fiction story. Indeed, it is because persons and things
are strictly opposed as subjects and objects of property right that it is
possible for two persons to exchange the things they own in a market.
27 Katsuhito Iwai, PERSONS, THINGS AND CORPORATIONS: THE CORPORATE
PERSONALITY CONTROVERSY AND COMPARATIVE CORPORATE GOVERNANCE, American Journal of Comparative Law, Fall 1999, Vol. 47, No. 4, pp.583-632.
39
«Capitalistic firms are founded on this simple relationship between
persons and things. In the case of the traditional single-proprietorship
firm, a man of means invested his capital in production facilities,
operated a production line, and sold products to markets in order to
earn profits. (He usually employed workers and clerks and often hired
managers). The individual capitalist was the subject of property right,
whereas the facilities, inventories, products and other tangible and
intangible assets were all the objects of property right. They were
directly opposed as a person and things».
«Capitalism is for expansion. In order to meet the ever-expanding
need for capital as well as to diversify the associated risks, capitalism
has developed various forms of business partnership since time
immemorial».
Of course, the transition from the individual proprietorship to the
partnership in itself changes nothing of the basic relationship between
persons and things. Instead of a single person owning facilities,
inventories, products and other assets, we now have a group of persons
jointly owning these things. An ownership is an ownership, be it a sole
ownership or a joint ownership. And yet, as we shall see, mere
quantitative differences may beyond a certain point pass into
qualitative changes.
40
In the case of a partnership firm, however, every partner has an
equal right and an equal duty to any contract it maintains. Whenever
there is a withdrawal or a death of an old partner or an admission of a
new partner, each contract has to be rewritten or at least the signatures
of the partners have to be updated. To write a contract and to sign and
seal it require toil and labor. If the number of partners is small, it may
be possible to save these transaction costs by including provisions for
such contingencies in each contract. But, as the size of the partnership
gets larger and the entering and leaving of partners is expected to be
much more frequent, it would soon become impossible to prepare for
all the possible contingencies in advance. This would render the
contract necessarily incomplete and its future execution necessarily
costly and uncertain. Outside parties would easily be discouraged from
entering into contractual relations with the partnership firm.
The corporation is a legal solution to this problem and exactly it is
the legal personality that holds the key to the problem. For it is the legal
personality that enables a business corporation to own real assets under
its own name, separate and distinct from those of the constituting
shareholders. This allows outside parties to enter into contracts directly
with a business corporation itself in exactly the same way as they enter
into contracts with the owner of a single-proprietorship firm. Hence, the
41
complex net-work of contractual relations is greatly simplified, leading
to a large reduction of transaction costs for all participants. Moreover,
the independence of the legal personality enables a business
corporation to outlast the lives of individual shareholders as long as the
shares are handed from individuals to individuals without interruption.
This shields the contracting third parties from the vagaries of the death,
withdrawal or entry of its individual shareholders, and removes some
of the third parties’ hesitation in maintaining contractual relations with
it.
The corporation is understood here primarily as a legal device
which simplifies and stabilizes the complicated web of contractual
relationships that an association of shareholders has to have with a
multitude of outside parties. Its legal personality endows the
corporation with the legal capacity to interpose itself between
shareholders and outside parties and to enter into contracts with the
latter on behalf of the former. But I have tried not to make any reference
to the possible advantages of the corporation over the partnership in
regard to the way shareholders organize themselves internally.
A business corporation is able to act as an independent owner of
its own property capable of making a contractual relation directly with
others, not because the inside shareholders will it to be so, but because,
42
and in so far as, the outside parties recognize it to be so. Such social
recognition is indispensable, and the law formalizes and reinforces this
social recognition in the form of legal personality.
After all, the Latin persona, from which the English word ‘person’ is
derived, meant originally an actor’s mask.18 Each persona incarnated a
role in a drama, and the spectator recognized the role of each actor by
the persona he wore. It is not to express his inner self through it but to
act out the role incarnated by it that an actor wore a persona on his face.
It should be noted that the corporation is described here not as a
‘nexus of contracts’ but as a full-fledged subject of property ownership.
In order for a corporation to serve as one of the parties of a contractual
relation, it has to be recognized by others as the holder of the ultimate
rights over some real assets and as the bearer of the ultimate duties
associated with their use, independently of its constituent members. A
mere nexus of contracts can never enter into a contractual relationship
even as a legal fiction, simply because it cannot locate the ultimate
subject of rights and duties when an event not specified in the contracts
takes place.
After which, the corporation has been introduced into the legal
system as a device to simplify the external relations of a group of
43
investors. But, this simplifying device also has the effect of complicating
the internal ownership structure of a business firm.
To be legal person is to be the subject of right and duties. To confer
legal right or to impose legal duties, therefore, is to confer legal
personality. Among definition to be found in discussions of the subject,
perhaps the most satisfactory is that legal personality is the capacity for
legal relations28.
The law speaks of a business corporation as a ‘legal person,’ as a
subject of rights and duties capable of owning real property, entering
into contracts, and suing and being sued in its own name.
Paragraph 3: Important terms of company law
● Business ( المؤسسة التجارية)
A business (also known as company, enterprise or firm) is an
organization involved in the trade of goods, services, or both to
consumers. In others words, the activity of providing goods and
services involving financial and commercial and industrial aspects. A
business is a legally recognized organization designed to provide goods
28 Corbin, legal analysis and terminology (1919), 29 YALE LAW JOURNAL 163.
44
or services, or both, to consumers, businesses and governmental
entities. Businesses are predominant in capitalist economies.
There are several forms of business ownership
● Sole proprietorship (المتجر):
A Sole proprietorship is a business owned by one person for-profit.
The owner may operate the business alone or may employ others. The
owner of the business has unlimited liability for the debts incurred by
the business. Legally, a sole proprietorship has no separate existence
from its owner. Income and losses are taxed on the individual's
personal income tax return.
The sole proprietorship is the simplest business form under which
one can operate a business. The sole proprietorship is not a legal entity.
It simply refers to a person who owns the business and is personally
responsible for its debts.
The sole proprietorship is a popular business form due to its
simplicity, ease of setup, and nominal cost. A sole proprietor need only
register his or her name and secure local licenses, and the sole
proprietor is ready for business.
45
A distinct disadvantage, however, is that the owner of a sole
proprietorship remains personally liable for all the business's debts. So,
if a sole proprietor business runs into financial trouble, creditors can
bring lawsuits against the business owner. If such suits are successful,
the owner will have to pay the business debts with his or her own
money.
● Partnership ( الشركة)
A partnership is a business owned by two or more people. In most
forms of partnerships, each partner has unlimited liability for the debts
incurred by the business29.
● Corporation
A corporation is a limited liability business that has a separate
legal personality from its members.
A corporation has a legal existence (and rights and duties) separate
from those of the individual persons who form it from time to time. So,
for example, third parties enter into contracts with the corporation and
not with the individual directors or members. The corporation also has
29 En English law, a partnership is defined, with misleading simplicity, in s 1(1) of the Partnership Act 1890 as ‘the relation which subsists between persons carrying on a business in common with a view of profit.
46
its own liabilities and assets which are distinct from those of the
directors or members
The basic legal characteristics of the business corporation are: legal
personality, limited liability, transferable shares, delegated
management under a board structure, and investor ownership30.
Corporations are of two main kinds, both of which are likely to be
encountered by caseworkers. The most common corporations are those
where collections of persons are incorporated - corporations aggregate.
However, a corporation can be constituted in a single person - a
corporation sole. Companies incorporated under the Companies Acts
are usually corporations aggregate, but may now also be corporations
sole.
Paragraph 4: The companies In Jordanian law
The Jordanian Civil Code (JCC) which was promulgated in 1976, in
addition to those prescribed by Company Law number 22 of 1997 And
its amendments31, adopted a different classification of companies
similar to that of Islamic Law.
30 John Armour , Henry Hansmann , Reinier Kraakman , The Essential Elements of corporate Law
What is Corporate Law?, Harvard Law School, Discussion Paper No. 643, 7/2009: http://www.law.harvard.edu/programs/olin_center/ 31 Published in the Official Gazette No. 4204 dated 15/5/1997
47
A. The companies prescribed by the Jordanian Civil Code
1. Work Companies (partnership for work): are defined as
companies where two or more partners join together to perform specific
work. In others words, a partnership for work consists of the conclusion
of a partnership with a view to undertaking work. According to article
611 of JoCivilC, the work company is a contract by virtue of which two
or more persons agree to undertake work and be liable for it for the
account of others in consideration of remuneration whether their shares
are equal or otherwise.
2. Persons' Companies: are established when two or more persons
join together to purchase goods on credit based on goodwill and
reputation to sell such goods for a profit.
3. Speculative (Mudharaba) Companies: are defined as those
companies in which a person lends capital to another to carry out
speculative business.
48
B. The companies prescribed by the Jordanian Company Law
In accordance with the article 6 of Jordanian company law, the
companies registered under this Law shall be divided into the following
forms:
1. General Partnership ( التضامن شركة ).
2. Limited Partnership .( (البسيطة التوصية شركة
3. Limited liability company ( املحدودة املسؤولية ذات الشركة ).
4. Limited Partnership in Shares ( باألسهم ةالتوصي شركة ).
5. Private Shareholding Company ( العامة املساهمة شركة ).
6. Public Shareholding Company ( الخاصة املساهمة شركة ).
49
PART TWO : THE MAJOR LEGAL SYSTEMS IN CONTEMPORARY
WORLD
In general, legal systems can be split between civil law and
common law systems. The term "civil law" referring to a legal system
should not be confused with "civil law" as a group of legal subjects
distinct from criminal or public law. A third type of legal system—
accepted by some countries without separation of church and state— is
religious law, based on scriptures.
The specific system that a country is ruled by is often determined
by its history, connections with other countries or its adherence to
international standards.
The conceptual distinctions between Civil Law and Common Law
systems are noteworthy in certain areas, but at the same time, there
appears to be growing agreement that the substantive differences are
becoming increasingly less significant32. However, a basic
understanding of the conceptual and practical differences, as well as
similarities, is very important.
32 INTRO TO CIVIL LAW LEGAL SYSTEMS, INPROL Consolidated Response (09-002), With contributions from William L. Sells, Barry Walsh, Alex Paredes-Penades, and others, http://inprol.org/sites/default/files/publications/2011/cr09002.pdf
50
Chapter 1: The civil law system
Civil law as a legal system is the most widespread system of law
around the world and it is also known as Continental European law. In
this system, the codification is the central source of law and the highest
source, which recognized as authoritative, is the constitution or statute
passed by legislature.
Chapter 2: The common law system and equity33
England is the birthplace of the common law system. Anglo-Saxon
law as a legal system is a body of written rules and customs that were in
place during the Anglo-Saxon period in England, before the Norman
Conquest in 1066. It is often called the common law system which
adopts the concept of "Stare Decisis" or the "doctrine of precedent".
Stare decisis means, on the one hand, decisions by courts are
explicitly acknowledged to be legal sources. In other words, judicial
precedents constitute a separate source of law and have an independent
authority of their own. Also, in this system, equity has not been enacted
by the parliament, but has been developed through the centuries by
judges applying established or customary rules of law to new situation.
33 Dr. ZAID AL-AQAILEH, Legal terminology, (دار الثقافة للنشر والتوزيع), 2005, p. 27-64.
51
On the other hand, decisions by higher courts bind lower courts.
Furthermore, it is interesting to note that the Common law systems
also rely on statutes, passed by the legislature, but may make less of a
systematic attempt to codify their laws than in a "civil law" system.
Indeed, English law finds its roots in the old cases, and remarkably
in the decisions of the chancery court. At the end of the thirteenth
century, the principal courts in England were
1. Many local courts held by feudal lords and others
2. The royal courts known as the courts of the common law.
In general, no action could be commenced in any of the common
law courts until a writ had been issued by the chancellor who was the
head of the king's Secretarial department. The writ was in a form in
which the plaintiff could state his claim in his own words. This created
complexity in procedures and, as a result, many suitors found
themselves with no remedy from the courts.
In such circumstances, and since the king was regarded as holding
the residue of judicial power which was left in his hand, the best way to
obtain relief was then the petition to the king and his council in order
that he might do justice according to the notion of equity.
52
Such petitions were used to be heard and investigated by the
king's council of which the chancellor was an important member. In this
way, the court of chancery gradually comes into existence. This court
was recognized as a court independent of the king's court and was
distinguished from the common law courts.
But, the existence of these distinguished courts caused a dispute
between them and became increasingly bitter during the latter part of
the sixteenth century when chancery and common law judges began to
issue contradictory verdict. This dispute was terminated in 1873 by the
passage of the judicature act, which became effective in 1875. This act
fused the two systems into a single court called the high court of justice.
As a part of the general process to reform the law in the nineteenth
century, the judicature act was passed to abolish all existing courts and
substitute them for a unified court structure, consisting eventually of
the House of Lords and the supreme court of judicature. The judicature
act laid down that
a) Equity and common law should be in future administered side
by side in all courts.
b) Where there is any conflict between a rule of equity and a rule of
law, with reference to the same matter, the rule of equity shall prevail.
53
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.
Chapter 3 The communist law system
Socialist law denotes a general type of legal system which has been
used in communist and formerly communist states. It is based on the
civil law system, with major modifications and additions from Marxist-
Leninist ideology. There is controversy as to whether socialist law ever
constituted a separate legal system or not. If so, prior to the end of the
Cold War, socialist law would be ranked among the major legal systems
of the world.
While civil law systems have traditionally put great pains in
defining the notion of private property, how it may be acquired,
transferred, or lost, socialist law systems provide, for most property, to
be owned by the state or by agricultural co-operatives, and having
special courts and laws for state enterprises.
Many scholars argue that socialist law was not a separate legal
classification. Although the command economy approach of the
communist states meant that most types of property could not be
54
owned, the Soviet Union always had a civil code, courts that interpreted
this civil code, and a civil law approach to legal reasoning (thus, both
legal process and legal reasoning were largely analogous to the French
or German civil code system). Legal systems in all socialist states
preserved formal criteria of the Romano-Germanic civil law; for this
reason, law theorists in post-socialist states usually consider the
Socialist law as a particular case of the Romano-Germanic civil law.
Chapter 4: The Islamic law system
Overview of Islam
Islam is to submit to Allah in His Oneness (Monotheism), to be
subservient to Him in obedience and not to associate any partners,
rivals, and intercessors with Him. It is a religion of tolerance and ease.
Allah (سبحانه وتعالى) says: ( Allah intends for you ease and does not intend
for you hardship), (2:185).
«According to Islam, the ultimate authority of law-making belongs
to God alone. In the ideal of Islamic law, everyone including the
Prophet and ruling authorities, is subordinate to God, working under
His direct or indirect guidance. Islamic law, irrespective of the variety
of its sources, emanates from God and aims at discovering and
formulating His will. God's will is not defined once for all and it is not a
55
static system. It is, on the other hand, dynamic and progressively
reveals itself in history. As Islam gives guidance for all walks of life,
Fiqh, the law of Islam, as developed from the beginning, comprehends
the religious, social, economic, and political aspects of human existence.
That is why a man acting according to the Islamic law is, in all
circumstances, deemed as fulfilling God's will. Thus, Islamic law is the
manifestation of God's will»34.
The Islamic legal system
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 rulings of Sharia law are based on the Qur'an and Sunnah, while
a 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 issue Fatwā.
34 AHMAD HASAN, THE SOURCES OF ISLAMIC LAW, Islamic Studies (Islamabad) 7:2 (1968),
http://irigs.iiu.edu.pk:64447/gsdl/collect/islamics/import/v7i25.pdf
56
The Mecelle (also transliterated Majalla) was the civil code of the ٭
Ottoman Empire in the late 19th and early 20th centuries. It was the first
attempt to codify a part of the Sharia-based law of an Islamic state.
57
PART THREE : JORDANIAN LEGAL SYSTEM35
Jordan was a part of the Ottoman Empire for more than four
centuries. The country was then placed under the League of Nations’
mandate which lasted until the achievement of independence on 5, May
1946. Jordan is a constitutional monarchy based on the constitution
promulgated on January 8, 1952. Executive authority is vested in the
King and the Council of Ministers. Legislative power rests in the
bilateral national assembly, and the 110 members of chambers of
deputies, elected by universal suffrage to a four year term, subject to
dissolution by the King. The forty members Senate is appointed for a
four year term.
Judges are appointed (and not elected) by the Judicial council
which comprises high ranking members of the legal system and cases
are decided only by judges and not juries. As a rule, the Constitution
adopts “the separation of power” doctrine, but, in some cases, this
doctrine is not adequately applied.
Although democratic parliamentary elections have been held
regularly since 1989, the government can delay the elections beyond the
35 Dr. Mohamed Olwan, The Three Most Important Features of Jordan’s Legal system,
58
constitutional deadline of the ballot. During the dissolution of
parliament or in cases where the National Assembly is not sitting, the
Government has the power to issue provisional laws.
Basic human Rights and freedoms are incorporated in the
Jordanian constitution. The right to establish political parties and
societies is recognized in the Jordanian constitution.
Genuine efforts are being made towards democratic reform and
modernization is taking place. Specialized human rights institutions
and consultative Human Rights councils are being set up. Recently, new
laws have been enacted and several laws have been amended in order
to enhance Human Rights and democracy in the country but the
condition of human rights in the Kingdom is not at its best36.
Jordan is subscribing more and more to universal human rights
standards. During the last two years, the main international rights
conventions have been published in the official gazette, making these
conventions part of the Jordanian legal system. These conventions
include the international convention on the elimination of all forms of
Racial Discrimination, the International covenant on civil and political
rights, the International Covenant on Economic and Social and Cultural
36 Dr. Mohamed Olwan, The Three Most Important Features of Jordan’s Legal system,
59
Rights, the Convention Against Torture and other cruel, inhumane, or
degrading treatment or punishment, the Convention on the rights of the
Child and the convention on the elimination of all forms of
discrimination against women.
Reservations made upon ratification or accession to international
human rights conventions are regrettable, but the withdrawal of these
reservations may be possible in the near future. International
conventions of human rights have become part of the national law
endorsed by the competent authority and replaced any current law to
the extent that such law is not in line with the constitution.
Codification37:
Jordan follows the codification system. Therefore, all legal rules
that are applicable by the courts are codified. Hence, there is no place
for applying common law system which is known in some countries
such as the United Kingdom and the United States.
Within this codification system, the constitution is considered as
the highest legal instrument, whereby all other laws must observe its
general principles and rules. The laws enacted by the parliament come
37 Dr. Mohamed Olwan, The Three Most Important Features of Jordan’s Legal system,
60
in the second place and after that come the regulations which are made
by the executive authority by virtue of the laws themselves.
Courts in Jordan apply the written laws in their constitutional
sequence of enforcement and priority. They are not, therefore, bound by
the ruling of other courts even if they have been issued by a higher
court nor are they bound by their own previous ruling, but only by
what is provided by the law. In short, Jordan does not apply the
precedent system.
The constitution provides for the establishment of three categories
of courts: civil courts, religious courts and special courts. Civil ordinary
courts comprise courts of first instance: courts of appeal, the High court
of Justice, and the Supreme Court.
These courts have jurisdiction over all persons in all matters, civil
and criminal, including cases brought by or against the government.
The religious courts are Shariah courts which have jurisdiction in
respect to matters relating principally to personal status of Muslims and
tribunals of other religious communities with jurisdiction over the
personal status of non-Muslims. Special courts deal with different
matters and compromise courts such as state security courts
administered by the Jordanian military.
61
Diversification and Modernization38:
Enacted in 1976, the current Jordanian civil Law replaced the
Ottoman Majallah of 1876 which is highly influenced by Islamic Law.
The Civil Law comprises rules derived from the Egyptian civil code of
1948 which in turn was modelled on the Napoleon code.
Despite this fact, it can be generally said that the civil law of Jordan
remains an Islamic-oriented one. Section two of the Civil code makes
this clear when it provides that Islamic jurisdiction is the second source
of the civil law and Shariah the third. In this sense, wherever a judge
does not find a specific rule within the provisions of the Civil law code,
he shall try to find the solution by referring to Islamic jurisdiction, and
Shariah principles, respectively.
The Jordanian civil code deals with the main following topics: the
formation of a contract, performance of obligations, the conrtact of sale,
some other specific contracts, rights of ownership, real securities. It
includes also some general rules relating to evidence and some
provisions that regulate labour contract and lease contract. However,
and given the importance of these contracts, the legislator regulated
38 Dr. Mohamed Olwan, The Three Most Important Features of Jordan’s Legal system,
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them by independent acts. Therefore, we have an independent evidence
act, lease act, civil procedure act, labour act, insurance act, among
others.
Family laws, such as marriage, divorce and custody fall out of the
scope of the Civil Law, as these matters are governed by independent
acts. Family laws for Muslims are derived from Islamic law, whereas
family laws for Christians are derived from the Christian faith. Some
other laws of Jordan are highly influenced by French law such as the
Criminal law. On the other hand, English law is found to be the prime
source for other laws, such as company law, insurance and trade laws.
Moreover, customs and trade practices are considered a source of
the legislation, especially in civil and commercial law. It is generally
believed that such diversification enriches the legal environment in
Jordan and makes it more exposed to international legal standards.
The legal system in Jordan is flexible in the sense that it is open
and ready to adopt new laws. In a number of instances, laws were
enacted or amended in order to reflect the requirements of new
circumstances, or to cater to political and economic reform needs. Laws
governing businesses in Jordan have undergone a fundamental change
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in 1995 in an attempt to attract foreign investment and create a self-
sustaining economy.
Several laws are enacted as a result of Jordan’s accession to WTO
in 2000 and the signing of free-trade agreements with the United States
and the European Union the following year. The new laws regulate
matters such as intellectual property, linecontracting, electronic
signature and certification, arbitration and companies.