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LEGAL SYSTEMS OF THE WORLD This entry provides descriptions of countries' legal systems, which are modelled on elements of five main types: civil law (including French law, the Napoleonic Code, Roman law, Roman-Dutch law, and Spanish law); common law (including United...

LEGAL SYSTEMS OF THE WORLD This entry provides descriptions of countries' legal systems, which are modelled on elements of five main types: civil law (including French law, the Napoleonic Code, Roman law, Roman-Dutch law, and Spanish law); common law (including United States law); customary law; mixed or pluralistic law; and religious law (including Islamic law). An additional type of legal system -- international law, which governs nations' interactions -- is also addressed below. Civil Law - the most widespread type of legal system in the world, applied in various forms in approximately 150 countries. Also referred to as European continental law, it is derived mainly from the Roman Corpus Juris Civilus (Body of Civil Law), a collection of laws and legal interpretations compiled under the East Roman (Byzantine) Emperor Justinian I between A.D. 528 and 565. The major feature of civil law systems is that the laws are organized into systematic written codes. The sources recognized as authoritative are principally legislation -- especially codifications in constitutions or government statutes -- and secondarily custom. Common Law - often called "English common law," England and Wales use the system in the UK, and it is also in force in approximately 80 countries with ties to the former British Empire. English common law reflects Biblical influences as well as remnants of legal systems imposed by early conquerors, including the Romans, Anglo-Saxons, and Normans. Some legal scholars attribute the system to King Henry II (r.1154-1189), who established the king's court to replace locally administered laws and made laws "common" to the entire English realm. The foundation of the system is "legal precedent," often referred to as stare decisis ("to stand by things decided"), in which judges must follow the precedent set by earlier court decisions. Customary Law - as the name implies, this system is based on the customs of a community. It serves as the basis of or has influenced the laws in approximately 40 countries -- mostly in Africa, but some in the Pacific Islands, Europe, and the Near East. Customary law is also referred to as "primitive law," "unwritten law," "indigenous law," and "folk law." The earliest legal systems were customary and usually developed in small agrarian and hunter-gatherer communities. Customary legal systems are seldom written down, regulate social relations, and are agreed upon by community members. If a law is broken, resolution tends to be reconciliatory rather than punitive. International Law - the body of customary and treaty rules accepted as legally binding by states in their relations with each other. There are three separate disciplines: public international law, which governs the relationship between provinces and international entities and includes treaty law, law of the sea, international criminal law, and international humanitarian law; private international law, which addresses legal jurisdiction; and supranational law, a legal framework of regional agreements. At present, the European Union is the only entity under a supranational legal system. Modern international law developed as European nation-states emerged beginning in the early 16th century. The sources are set out in Article 38-1 of the Statute of the International Court of Justice in the UN Charter. Mixed Law - also referred to as pluralistic law, mixed law consists of elements of some or all of the other main types of legal systems. The mixed systems of a number of countries came about when colonial powers overlaid their own legal systems on colonized regions but retained elements of the colonies' existing systems. Religious Law - a legal system that stems from the sacred text of a religious tradition and in most cases professes to cover all aspects of life as part of devotional obligations. Inalterability is implied, because the word of God cannot be amended or legislated, but human elaboration allows for a detailed legal system. The main types of religious law are sharia in Islam, halakha in Judaism, and canon law in some Christian groups. Sharia is the most widespread (see Islamic Law) and is the sole system for some countries, including Iran, the Maldives, and Saudi Arabia. No country is fully governed by halakha, but Jewish people may decide to settle disputes through Jewish courts. Canon law is not considered a divine law because it is viewed as human law inspired by God. Canon law regulates the internal ordering of the Roman Catholic Church, the Eastern Orthodox Church, and the Anglican Communion. https://www.cia.gov/the-world-factbook/field/legal-system/ 2. There are five basic types of legal systems in the world. They are civil law, common law, customary law, religious law, and hybrid or mixed systems. Today, mixed or hybrid systems are common. Because each system varies by country, this chapter will focus on the characteristic traits of each kind of system. Figure 11.4 This map shows the different types of legal systems in place around the world.43 (attribution: Copyright Rice University, OpenStax, under CC BY 4.0 license) Note that before discussing different law systems, it is important to distinguish between what the term civil means in the context of legal systems and what it means in terms of civil versus criminal laws. Common Law Systems The US legal system, and other legal systems that emanate from British rule, is a common law system.44 Originally, common law meant judge-made law that filled in gaps when there was no written law. Judges looked to prior decisions to determine the unwritten judge-made law and apply it to new cases. However, today, almost all law is in writing and enacted by a legislature as statutes. Many statutes codify established common law, change it, or abolish it altogether, depending on the topic of the law. There are instances in which some unwritten common law is still enforced, but these are rare. In a common law system such as the one in the United States, the courts’ reliance on precedent is referred to as stare decisis, or a policy of using judicial decisions made in the past to interpret written laws and appropriately apply those laws to the facts in the present case.45 The court interprets written laws, and these interpretations and applications of precedent from prior interpretations constitute what is meant by common law today. Precedent is critical for interpreting later cases, and only the same or a higher court can overturn precedent. The court process is adversarial rather than investigatory, with each side trying to win or persuade the court to agree with its perspective. 46 Common law courts are adversarial; that is, there is a winner-takes-all attitude in the court. In an adversarial system, each side determines the issues and questions it wants the court to resolve, conducts its own investigation, and prepares and presents its own evidence. Each side calls witnesses, who are questioned directly and by cross-examination. Each side brings out information it thinks is pertinent to prove its point. In a criminal case, the police and prosecutor work together closely to establish their viewpoint using the government’s resources. Defendants must rely on their own resources to defend against the charges, either hiring an attorney or using a court-appointed one. In a civil case, the procedures are similar; however, each side must rely on its resources to prove its point. If a jury is present, it decides all factual questions while the judge determines the legal issues and moderates the proceedings. In some cases, the judge can act as a fact finder in place of a jury. Civil Law Systems Most of Europe and South America use a civil law system.47 A civil law system relies on comprehensive legal codes that contain all laws for the country. Case law—that is, judicial decisions—is secondary to these codes. Decisions are binding only on the parties to the case, not as a precedent for later cases on the same issues. While attorneys will consult prior decisions when advising clients, judges are rarely bound to follow precedent. For this reason, codes of statutes are usually more extensive and detailed than in common law systems. In civil law systems, court cases are investigations by the court to see how the facts fit into the already established codes applicable to the situation. The court system is set up so that the jurisdiction of each court is a specific type of code: tax courts, administrative courts, maritime courts, constitutional courts, and so on. The system is more inquisitorial than adversarial. The process is a series of meetings, hearings, and written communications in which the judge takes testimony. The judge crafts the issues to be decided based on discussions with the parties. Typically, the judge questions the witnesses and can include or exclude any queries submitted by the attorneys when crafting questions. Finally, the judge determines the issues and gathers the evidence before announcing a decision.48 Only at the final hearing do the attorneys and parties make arguments to the judge. If there is a jury, its members usually are not drawn from the general public but are selected for their expertise in the particular area in question. While juries of ordinary people are rare in civil law systems, they are increasingly used in serious criminal cases. These two systems, common law and civil law systems, are the most widely used legal systems in the world. They differ in terms of the weight they give to judicial precedent and their views on the purpose of the trial process. Religious Systems In a religious law system, the law relies on religious texts as its primary basis, and the courts interpret the present facts and statutes in light of those religious texts. Many Middle Eastern countries use religious law systems for all or part of their laws. 49 For example, in Saudi Arabia, the legal system is based on sharia law, derived from the Koran, the Islamic religious text, as well as from the Sunnah and the Hadith.50 The legislature enacts statutes, but all are tested against Islamic tenets. Certain religious leaders can overrule any government act, including court decisions, on religious grounds. The legal system includes general and summary sharia courts, with some administrative tribunals for specific topics. Religious law systems do not use juries, and criminal trials do not present defensive evidence to the same extent as in other legal systems. Each judge, a specialist in the religious sharia text, makes their interpretation of the law and is not bound by any precedent. Israel also uses some religious laws and courts to determine cases.51 For example, religious courts in Israel include Jewish rabbinical courts, Islamic sharia courts, Druze religious courts, and ecclesiastical courts of the 10 recognized Christian communities. In Israel, these courts are limited to some specific issues of family law. The secular court system decides all other matters. Customary Systems A customary law system is a system based on long-standing traditions in a particular community. The traditions have become so ingrained in society that the courts recognize them as enforceable rules. However, it is rare for customary laws to be interpreted and enforced by the government. Instead, select leaders of the group usually implement the customary laws. As a result, customary laws are typically unwritten and revealed only to group members. Today, customary laws are found in closed, isolated communities combined with common or civil law systems, allowing them to exist alongside government systems in a hybrid system. Andorra, a small country in the Pyrenees bordering Spain and France, relies partly on customary law. In Andorra, sources of customary law include canon law, the ecclesiastical law of the Catholic Church, Castilian law, French law, and Roman law. Andorra was invaded and under the control of other European powers at different times in its history, and the Andorran legal system now reflects elements of each invader’s laws. Today, Andorra is a parliamentary co-principality between the president of France and the Roman Catholic bishop of Catalonia (Urgell). Andorra also has an elected parliament that can enact new laws.52  Common Law Civil Law Religious Law Customary Law Differs by religion; two prominent Continental law; Differs by are Judge-made law; ones are sharia Other Names European law; ethnicity, an Anglo-American law (Islamic law) and Roman law tribe halakha (Jewish law) Long-standing Case law and Statutes organized customs, whic Source of Law statutes, which may Religious texts in codes may be oral o be organized in codes written High; important to High; important to society that judiciary society that Degree of Wide range, from appears to be judiciary appears to Wide range, fro Judicial very limited to independent of be independent of limited to high Independence high executive and executive and legislature legislature Wide variety of Career position Varies widely wit selection and requiring training Religious and legal Judges customs of th qualification and testing; civil training area standards servants Due to stare decisis, Depends on Depends o shares power with territory and topic territory and top Equal but separate Policy-Making individuals who come area; paramount area; paramoun power as the Role before the court and in some cases, in some case enforcer of codes with government advisory only in advisory only branches others others US (except Louisiana), All European Union Saudi Arabia, Iran, Guernsey, Examples UK, Canada (except countries, Quebec, United Arab Andorra Quebec) Louisiana Emirates, Israel Table 11.1 Differences among Major Legal Systems The island of Guernsey is another example of a customary law system. Though it is one of the Channel Islands off the coast of England, Guernsey is not part of the United Kingdom. Guernsey’s legal system is derived from the medieval power of the monarch, the Duke of Normandy.53 The ancient duchy law of Normandy is an influential source of law in Guernsey. The duchy laws developed in two periods, the Ancienne coutume of 1199–1538 and the Coutume reformée of 1538–1804.54 Guernsey’s legal system also has elements of English common law and modern statutory law enacted by the island’s elected legislature. Guernsey enjoys almost complete autonomy over its internal affairs, and the country determines many issues based on ancient customary laws, with elected bailiffs and jurats making decisions.55 In the United States, some customary laws may be used in tribal matters on tribal lands recognized by the US government.56 However, the US government does exercise some control over tribal legal systems in the United States. There is a growing worldwide movement to recognize tribal autonomy and customary legal systems.57 For example, some Maori customary law is now recognized in New Zealand.58 Hybrid or Mixed Systems A hybrid legal system combines parts of more than one approach to create a system unique to the country. Many countries have mixed legal systems incorporating common, civil, religious, and customary law systems.59 For example, the US state of Louisiana has a hybrid system. Louisiana uses some common law, but it also utilizes a civil law system for much of its state law and procedures because of its origins as a French territory. Also, on recognized tribal lands, customary laws of the tribe may be used rather than state or federal laws. Another example is the Philippine system, which includes French civil law, US-style common law, sharia law, and Indigenous customary law due to its history.60 Many African countries include a parallel tribal or ethnic legal system to adjudicate family law matters.61 https://openstax.org/books/introduction-political-science/pages/11-3-types-of-legal-systems- around-the-world https://opiniojuris.org/2013/01/29/legal-systems-of-the-world-updated/legal-systems-of-the-world- updated/ 3. Types of Legal Systems In Common Law systems, judicial opinions take precedence over other types of laws, including legislation. The United States government and 49 out of 50 states are Common Law jurisdictions. The U.S. inherited its Common Law tradition from the United Kingdom, just like many other former and current British protectorates and colonies. Some of the key features of Common Law systems are the following:  There may not be codified laws or a written constitution (like the U.K.). Judicial decisions are binding. An opinion of the highest court can only be overturned by the same high court, or through an act of the legislature. Extensive freedom of contract - few provisions are implied into the contract by law (although provisions seeking to protect private consumers may be implied). Generally, everything is permitted that is not expressly prohibited by law. In Civil Law jurisdictions, the primary source of law is a written code. Features of a civil law system include: A written constitution based on specific codes (e.g., civil code, codes on administrative law, tax law, constitutional law) which establishes basic rights and duties. Administrative law is usually less codified; administrative court judges tend to behave more like common law judges. Legislative acts (not judicial opinions) are considered binding for all. Judge-made law is not a central focus in civil, criminal and commercial courts. Judges do tend to follow previous judicial decisions, while constitutional and administrative courts can nullify laws and regulations, and their decisions in such cases are binding for all. The writings of legal scholars may have significant influence on the courts (e.g., in Germany). Courts are specific to the underlying codes. This means there are separate constitutional court, administrative court, and civil court systems that opine on consistency of legislation and administrative acts with and interpret that specific code. Less freedom of contract than in Common Law systems. Many provisions are implied into a contract by law and parties cannot contract out of certain provisions. Beyond Civil and Common The two major legal systems in the world are Civil Law and Common Law, but JurisGlobe, a project of the University of Ottawa, identifies five categories of legal systems: Civil law, Common law, Customary law, Muslim law and Mixed law systems In Mixed law systems, either two or more systems apply cumulatively or interactively, or different systems are applied depending on the legal issue. For example, Civil law controls property, contracts, and family law in Louisiana, while the Common law principles of jury trials, burdens of proof, and pretrial discovery still operate in the state's criminal law. A legal structure with competing or overlapping legal systems is known as "polycentric law" Only a Starting Point It is important to recognize that two jurisdictions with the "same" legal system may still be significantly different in reality. For example, the U.S. and the U.K. are both Common Law jurisdictions, but one has a president and a written Constitution while the other has a monarch, a prime minister, and an unwritten constitution. https://libguides.law.umich.edu/c.php?g=815412&p=5891391