Major legal systems
Three major legal systems
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The three major legal systems of the world
today consist of
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Continental legal system (civil law)
Anglo-American legal system (common law)
Religious legal systems
Each country often develops variations on
each system or incorporates many other
features into the system.
Continental legal system
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It is a legal system inspired by Roman law, the primary feature
of which is that laws are written into a collection, codified, and
not determined, as in common law, by judges.
The principle of this system is to provide all citizens with an
accessible and written collection of the laws which apply to
them and which judges must follow.
It is the most prevalent and oldest surviving legal system in the
world.
Continental legal system is sometimes inappropriately referred
to as Roman law or otherwise called Romano-Germanic law,
especially by people under its jurisdiction.
History
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The civil law system is based on Roman law, especially the
Corpus Juris Civilis of Emperor Justinian, as later developed
by the Middle Ages
The acceptance of Roman law had different characteristics
in different countries. In some of them its effect resulted from
legislative act - it became positive law, whereas in other
ones it became accepted by way of its processing by legal
theorists.
A second characteristic, beyond Roman law foundations, is
the extended codification of the adopted Roman law - its
inclusion into civil codes. The concept of codification dates
back to the Code of Hammurabi in ancient Babylon.
Codification
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The concept of codification was further developed during the
17th and 18th century, as an expression of both Natural Law
and the ideas of the Enlightenment.
The political ideal of that era was expressed by the concepts of
democracy, protection of property and the rule of law. That ideal
required the creation of certainty of law, through the recording
of law and through its uniformity.
So, the mix of Roman law and customary (local) law ceased to
exist, and the road opened for law codification, which could
contribute to the aims of the above mentioned political ideal.
The French Napoleonic Code of 1804, Austrian civil code of
1811 and the German civil code of 1900 were the most
influential national civil codes.
Subgroups
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However, since continental European traditions are by no
means uniform, scholars of comparative law usually
subdivide civil law into four distinct groups:
French civil law – in France, Belgium, Luxembourg,
Quebec (Canada), Louisiana (USA), Italy, Spain and former
colonies of those countries
German civil law – in Germany, Switzerland, Brazil,
Portugal, Turkey, Japan, South Korea, China
Austrian civil law – in Austria, Czech republic, Slovakia,
Greece, Serbia, Romania
Scandinavian civil law – in Sweden, Denmark, Finland,
Iceland, Norway
Anglo-American legal system
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Common law is law developed by judges through decisions of
courts and similar tribunals (called case law), rather than
through legislative statutes or executive action, and to
corresponding legal systems that rely on precedential case law.
Common law legal systems are in widespread use, particularly
in England where it originated in the Middle Ages, and in
nations that trace their legal heritage to England as former
colonies of the British Empire, including the United States,
Singapore, Pakistan, India, Ghana, Cameroon, Canada,
Ireland, New Zealand, South Africa, Hong Kong and Australia
History of the common law
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The term "common law" originally developed after the
Norman Conquest of England
The "common law" was the law that the whole country had in
common, rather than particular tribal laws that might apply
between smaller communities
The doctrine of precedent developed under the inquisitorial
system in England during the 12th and 13th centuries
Equity is the name given to the set of legal principles, in
jurisdictions following the English common law tradition,
which supplement strict rules of common law where their
application would operate harshly
Basic principles of common law
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The common law is more flexible than statutory law
Common law courts are not absolutely bound by
precedent, but can (when extraordinarily good
reason is shown) reinterpret and revise the law,
without legislative intervention, to adapt to new
trends in political, legal and social philosophy
The common law evolves through a series of
gradual steps, that gradually works out all the
details, so that over a decade or more, the law can
change substantially but without a sharp break,
thereby reducing disruptive effects
Interaction of statutory and case law
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In almost all areas of the law (even those where
there is a statutory framework, such as contracts for
the sale of goods or the criminal law), legislatureenacted statutes generally give only terse
statements of general principle, and the fine
boundaries and definitions exist only in the common
law
In common law jurisdictions, legislatures operate
under the assumption that statutes will be interpreted
against the backdrop of the pre-existing common law
and custom
Religious legal systems
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Religious law refers to the notion of a
religious system or document being used as
a legal source
The main kinds of religious law are Sharia in
Islam, Halakha in Judaism, and Canon law in
some Christian groups
Islamic law
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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.
Mainstream Islam distinguishes between fiqh (deep
understanding, discernment), which refers to the
inferences drawn by scholars, and sharia, which
refers to the principles that lie behind the fiqh.
Origins of Islamic law
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Sharia Law is founded on the teachings of Allah and
the acts and sayings of Muhammad as found in the
Qur'an and the Sunnah.
Sharia was not fully developed at the time of
Muhammad's death, but rather it evolved around the
Muslim community
Before the 19th century, legal theory was considered
the domain of the traditional legal schools of thought.
The legal schools followed by most Sunni Muslims
were Hanafi, Hanbali, Maliki or Shafi`i. Most Shia
Muslims followed the Ja'fari school of thought
Division between Shia and Sunni
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The division between Shia and Sunni dates back to the death
of the Prophet Muhammad, and the question of who was to
take over the leadership of the Muslim nation.
Sunni Muslims agree with the position that the new leader
should be elected from among those capable of the job.
Shia Muslims have not recognized the authority of elected
Muslim leaders, choosing instead to follow a line of Imams
which they believe have been appointed by the Prophet
Muhammad or God Himself
Sunni Muslims make up the majority (90%) of Muslims all over
the world. Significant populations of Shia Muslims can be found
in Iran and Iraq
Sources of Islamic law I.
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The primary sources of Islamic law are the Qur'an
and Sunnah. Sharia has certain laws which are
regarded as divinely ordained, concrete and timeless
for all relevant situations. It also has certain laws
which derived from principles established over time
by Islamic lawyers
Traditional Sunni Muslims also add the consensus
(ijma) of Islamic jurists (ulema) on certain issues,
and drawing analogy from the essence of divine
principles and preceding rulings (qiyas).
Sources of Islamic law II.
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Shia jurists maintain that if a solution to a problem
can not be found from the primary sources, then
reason should be given free rein to deduce a proper
response from the primary sources – the process is
called „ijtihad“ (literally meaning "exerting oneself")
The term „urf“ refers to the customs and practices
of a given society - although this was not formally
included in Islamic law, the Sharia recognizes
customs that prevailed at the time of Muhammad but
were not abrogated by the Qur'an or the tradition
Socialist law
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Socialist law is the official name of the legal system used
in Communist states. It is based on the civil law system,
with major modifications and additions from MarxistLeninist ideology
Prior to the end of the Cold War, Socialist law was
generally ranked among the major legal systems of the
world
However, many contemporary observers no longer
consider it to be such, due to similarities with the civil law
system and the fact that it is no longer in widespread use
following the dismantling of most communist states.
Mixed legal systems
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Mixed legal systems are mostly defined as
the combination of civil law and common law
Examples - South Africa, Louisiana, Israel
Israel's legal system combines English
common law, civil law, and Jewish law
Legal enclaves – territories surrounded by
different legal culture