An introduction to the North African legal systemPosted: 14 March, 2016
Author: Sara Hilal bik
The North African countries have common and universal characteristics which include the related social traditions customs and mores that have been incorporated due to historical and geographical reasons. They comprise Morocco, Algeria and Tunisia. The major fundamental explanation for the identical legal systems in Morocco, Algeria and Tunisia is attributable to the French colonization. The French colonial empire launched its colonial project in the 17thcentury. This historical event had a very essential and weighty effect on the development of the North African legal system – it been an inspiring factor in many law subjects like contract law, commercial trade law, business law.
What is more, religion forms an important part of the legal system of the North African countries. For instance Morocco is the combination of Muslim and Jewish traditions. North Africa is considered as civil law system particularly based on Islamic law and French law which follow a special ideology. The North African legal system gives privilege use to codes and statues which are created to cover all anticipated problems and situations. Moreover judges and judicial organs and the administrative institutions must comply with the rules in the codes and statutes. As result the judges have strict role of applying the legal materials. The judicial authorities in North Africa have regular roles – the judges tend to be as investigators and detectives in both criminal cases and civil cases. The responsibility of judges is to inspect the case and listen to every party based on the evidence and arguments presented to them, and then they utilize the higher and superior instrument which is the codes that restricts the function of judges to appreciate or declare a judgment. Codes contain rules of law that must be observed by the judicial organs and also citizens. Judges use codes extensively to deal with the conflicts and disputes that are presented to the court.
The North African legal system is a codified legal regime which originated from French law. The general features of the North African legal system are the written constitution as well as the codes and the special commandments (civil code, corporation’s code, penal code, administrative code, commercial code) which contain the fundamental rights and duties, also the ground rules for civil and public liberties.
The judges have to perform the legal duty, which is interpreting the rule of law in a controlled and restricted context. The interpretation process involves connecting the case and evidence to the essence and the frame of the rule of law. Some rules seem similar to another which requires the judge to link all the components and the mechanism of the case to conclude the appropriate rule of law that must be applied in the confronted instance. Some rules of law have limited content that doesn’t clearly fit the particular legal case before the court. This usually necessitates that the judge interpret the law in a manner that brings clarity and precision for the benefit of subsequent cases. As a result of the lucidity that the rule of law requires, the judges must provide reasoned opinions in the application of the legislative regulations.
The judges may act as arbiters (‘arbiters’ is used here in Koranic terms to refer to a conciliator) only in certain cases like divorce and generally family law, that demand a respectful and considerate approach to the sacred and blessed connection which is marriage. The judges must listen conscientiously to the parties (husband and wife) , and try to comprehend the circumstances of the case in order to assess if there’s sufficient reason for the marriage to continue. Factors that may be taken into consideration include existence of children, shared properties, and communal necessity that the marriage must persist. The judges must perform and play a part as arbiters, so that the matrimonial relation will persist. This fundamental directive has its origin in the holy Koran, the sacred book for Muslims, that consider marriage as prestigious relation that must be preserve and perpetuated and if the marriage faces challenges, the arbiters must reconcile and pacify the parties.
About the Author:
Sara Hilal bik holds a bachelor of laws (LLB) degree in private law form University of Hassan II, Morocco. She is legal researcher and scholar specialising in North African law.