Session 2

THE MAJOR LEGAL SYSTEMS OF THE WORLD

Introduction
Most nations today follow one of two major legal traditions: common law or civil law. The common law
tradition emerged in England during the middle Ages and was applied within British colonies across
continents. The civil law tradition developed in continental Europe at the same time and was applied in
the colonies of European imperial powers such as Spain and Portugal. Civil law was also adopted in the
nineteenth and twentieth centuries by countries formerly possessing distinctive legal traditions, such as
Russia and Japan, which sought to reform their legal systems in order to gain economic and political
power comparable to that of Western European nation-states.

The Common Law and Civil Law Legal Systems

Common Law System
Common law traces its roots to the medieval idea that the law as handed down from the king's courts
represented the common custom of the people. It evolved chiefly from three English Crown courts of the
twelfth and thirteenth centuries: the Exchequer, the King's Bench, and the Common Pleas.

Early common-law procedure was governed by a complex system of pleading, under which only the
offenses specified in authorized writs could be litigated. Complainants were required to satisfy all the
specifications of a writ before they were allowed access to a common-law court. This system was
replaced in England in mid-1800s.

The court of equity, which were instituted to provide relief to litigants in cases where common-law relief
was unavailable, later merged with common-law courts to constitute the English legal system. This
consolidation of jurisdiction over most legal disputes into several courts was the framework for the
modern Anglo-American judicial system.

Notable of the common-law system, courts base their decisions on prior judicial pronouncements rather
than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute
determines how the law applies. Common-law judges rely on their predecessors' decisions of actual
controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law
judges find the grounds for their decisions in law reports, which contain decisions of past controversies.
Under the doctrine of Stare Decisis, common-law judges are obliged to adhere to previously decided
cases, or precedents, where the facts are substantially the same. A court's decision is binding authority for
similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is
not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be
considered as persuasive authority.

Because common-law decisions deal with everyday situations as they occur, social changes, inventions,
and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in
a case of first impression (previously undetermined legal issue). The common-law system allows judges
to look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in
making a decision. This flexibility allows common law to deal with changes that lead to unanticipated
controversies. At the same time, stare decisis provides certainty, uniformity, and predictability and makes
for a stable legal environment.

Under a common-law system, disputes are settled through an adversarial exchange of arguments and
evidence. Both parties present their cases before a neutral fact finder, either a judge or a jury. The judge
or jury evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favour
of one of the parties. Following the decision, either party may appeal the decision to a higher court.
Appellate courts in a common-law system may review only findings of law, not determinations of fact.

Thus, common law systems place great weight on court decisions, which are considered ‘law’ with the
same force of law as statutes. Common law courts have had the authority to make law where no
legislative statute exists, and statutes mean what courts interpret them to mean.

Civil Law Systems

Also referred to as the Roman-Germanic Law or Continental European Law System, this is a legal system
inspired by Roman and Germanic law and whose the primary feature is that laws are written into a
collection, codified, and not (as in common law) interpreted by judges.

The principle of civil law 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 widespread system of law in the world,
in force in various forms in about 150 countries.

Conceptually, it is the group of legal ideas and systems ultimately derived from the Code of Justinian, but
heavily overlaid by Germanic, ecclesiastical, feudal, and local practices, 1 as well as doctrinal strains such
as natural law, codification, and legislative positivism.

Materially, civil law proceeds from abstractions and formulated general principles and distinguishes
substantive rules from procedural rules. It holds legislation as the primary source of law, and the court
system is usually inquisitorial, unbound by precedent, and composed of specially trained judicial officers
with a limited authority to interpret law.
1
Charles Arnold Baker, The Companion to British History, s. v. "Civilian" (London: Routledge, 2001), 308.
Juries separate from the judges are not used, although in some cases, volunteer lay judges participate
along with legally trained career judges.

Comparison between the Common Law System and the Civil Law Legal System
The difference between civil law and common law lies not just in the mere fact of codification, but in the
methodological approach to codes and statutes. In civil law countries, legislation is seen as the primary
source of law. By default, courts thus base their judgments on the provisions of codes and statutes, from
which solutions in particular cases are to be derived. Courts thus have to reason extensively on the basis
of general rules and principles of the code, often drawing analogies from statutory provisions to fill
lacunae and to achieve coherence. By contrast, in the common law system, cases are the primary source
of law, while statutes are only seen as incursions into the common law and thus interpreted narrowly.

In civil law systems, statutes set the general principles of the law expressly by stating them; the courts
then make their own interpretations of those general principles afresh in each case to arrive at conclusions
about how those general principles translate into details.

In common law systems, the approach is the opposite: the legislation sets the details, from which the
general principles emerge, much like a computer programme. The idea is that those who are making the
statutes, rather than the courts, should be the ones who have the power to decide how the details work.

The civil law can thus be described as a top-down approach to principles, whereas the common law can
be described as a bottom up approach. Both systems ‘value’ principles equally, but arrive at them, and
deal with the interface between principle and detail, in very different ways.

Thus, common law and civil law systems may be distinguished in light of some key features. System
Features. Of course, it must be noted that the systems may not exhibit all of the features in question, but
the tendency is that most of the features will be seen to operate for a particular legal system to fall under
that category.

The areas of distinction include:

1) Common law systems trace their history to England, while civil law systems trace their history to
Roman law and the Napoleonic Code.
2) Regarding continuity of the legal system, whereas common law is evolutionary, civil law systems
are revolutionary. Civil laws are altered immediately the legislature enacts a law whereas
common law courts will continue to apply precedents making the changes slow and progressive.
3) The major sources of law in the common law system are customs and practice while in civil law
legislative statutes stand as the primary source of law.
4) With regard to precedents, there is a very strong reliance to them in the common law system. This
is not the case with civil law system which does not rely on previous decisions, but rather on
codes.
5) The systems may also be distinguished on the basis of judicial role in law-making. Whereas in
common law it is active and creative, in the civil law system the judiciary only plays a passive
and technical role.
6) The role of legal scholarship in the common law system is usually secondary and peripheral,
while in a civil law system the use of legal scholarship is extensive and influential.
7) Judicial review of statutes and of executive actions is largely incorporated in common law system
which is not the case in the civil law world.
8) At common law, the major decision-making stage is the trial stage, while at civil law, the critical
stage in the process is at the investigation and examination period.
9) The trial format in common law is accusatorial and confrontational, while in civil law, it is
inquisitorial and collaborative.
10) The use of argument and debate during trial, extensive and fundamental in common law systems.
In civil law, the arguments are quite modest and restricted.
11) The style of legal reasoning in common law is inductive while in civil law, it is usually deductive.
12) Trial emphasis in common law is usually on procedural correctness, whereas the civil law system
normally emphasises on factual certainty.
13) Evidentiary rules in common law is formal and restrictive. The exclusionary rule is usually
employed in common law. In civil law, usually all relevant evidence considered.
14) With respect to the role of lawyers during trial, it is primary in common law system, while in civil
law system the lawyers only play a secondary role.
15) The common law lawyer’s function is to debate and oppose while in civil law, the lawyer’s
function is to advise and inform.
16) The judge’s role during trial is that of a referee/umpire in common law while in civil law, he/she
is a director/examiner.
17) The common law judges are usually political appointees from practicing lawyers and other
judicial ranks. Their status is of political VIPs. In civil law, judges are appointed by merit
advancement from judicial specialists. Their status is of mid-level civil servants.
18) Some common law jurisdiction allow citizen’s participation in trial by employing juries (grand &
petit). In civil law, decisions are usually by members of judicial panels.
19) While appeals in common law normally focus on procedural propriety, in civil law, appeals focus
both on procedural and substantive propriety.
20) The structure of the common law courts is usually unified while civil law systems have diffused
court structures (with multiple specialized courts).

Inquisitorial versus Adversarial Trials

One key distinction between the common law and civil law is that whereas the common law is
adversarial, civil law is inquisitorial.

Inquisitorial System
Inquisitorial trial is a method of legal practice in which the judge endeavours to discover facts while
simultaneously representing the interests of the state in a trial. The presiding judge in the trial is not a
passive recipient of information. Rather, he is primarily responsible for supervising the gathering of the
evidence necessary to resolve the case. He actively steers the search for evidence and questions the
witnesses, including the respondent or defendant. Lawyers play a more passive role, suggesting routes of
inquiry for the presiding judge and following the judge's questioning with questioning of their own.
Lawyers’ questioning is often brief because the judge tries to ask all relevant questions.

The inquisitorial system was first developed by the Catholic Church during the medieval period. The
ecclesiastical courts in thirteenth-century England adopted the method of adjudication by requiring
witnesses and defendants to take an inquisitorial oath administered by the judge, who then questioned the
witnesses. In an inquisitorial oath, the witness swore to truthfully answer all questions asked of him or
her. The system flourished in England into the sixteenth century, when it became infamous for its use in
the Court of the Star Chamber, a court reserved for complex, contested cases. Under the reign of King
Henry VIII, the power of the Star Chamber was expanded, and the court used torture to compel the taking
of the inquisitorial oath. The Star Chamber was eventually eliminated as repugnant to basic liberty, and
England gradually moved toward an adversarial system.

After the French Revolution, a more refined version of the inquisitorial system developed in France and
Germany. From there it spread to the rest of continental Europe and many African, South American, and
Asian countries. The inquisitorial system is now more widely used in the world.

The court procedures in an inquisitorial system vary from country to country. Most inquisitorial systems
provide a full review of a case by an appeals court. In civil trials under either system of justice, the
defendant, or respondent, may be required to testify. A trial in an inquisitorial system may last for months
as the presiding judge gathers evidence in a series of hearings.
Adversarial System
In the adversary trials, two or more opposing parties gather evidence and present the evidence, and their
arguments, to a judge or jury. The judge or jury knows nothing of the litigation until the parties present
their cases to the decision maker. The defendant in a criminal trial is not required to testify before the
decision is given in the adversarial system.

Distinction between Inquisitorial and Adversarial Systems

The goal of both the adversarial system and the inquisitorial system is to find the truth. But the adversarial
system seeks the truth by pitting the parties against each other in the hope that competition will reveal it,
whereas the inquisitorial system seeks the truth by questioning those most familiar with the events in
dispute.

The adversarial system places a premium on the individual rights of the accused, whereas the inquisitorial
system places the rights of the accused secondary to the search for truth.

The most striking differences between the two systems can be found in criminal trials. In most
inquisitorial systems, a criminal defendant does not have to answer questions about the crime itself but
may be required to answer all other questions at trial. Many of these other questions concern the
defendant's history and would be considered irrelevant and inadmissible in an adversarial system. A
criminal defendant in an inquisitorial system is the first to testify. The defendant is allowed to see the
government's case before testifying, and is usually eager to give her or his side of the story. In an
adversarial system, the defendant is not required to testify and is not entitled to a complete examination of
the government's case.

A criminal defendant is not presumed guilty in an inquisitorial system. Nevertheless, since a case would
not be brought against a defendant unless there is evidence indicating guilt, the system does not require
the Presumption of Innocence that is fundamental to the adversarial system.

The decision in an inquisitorial criminal trial is made by the collective vote of a certain number of
professional judges and a small group of lay assessors (persons selected at random from the population).
Neither the prosecution nor the defendant has an opportunity to question the lay assessors for bias.
Generally, the judges vote after the lay assessors vote, so that they do not influence the conclusions of the
lay assessors. A two-thirds majority is usually required to convict a criminal defendant, whereas a
unanimous verdict is the norm in an adversarial system.

The inquisitorial system does not protect criminal defendants as much as the adversarial system.
Prosecutors in the inquisitorial system do not have a personal incentive to win convictions for political
gain, which can motivate prosecutors in an adversarial system.
Most scholars agree that the two systems generally reach the same results by different means.

Some countries, such as Italy, use a blend of adversarial and inquisitorial elements in their court system.

Other Major Legal Systems

Socialist Legal Systems
Socialist system mostly denotes a general type of legal system used in the communist and former
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, 2 but prior
to the end of the Cold War, socialist law ranked among the major legal systems of the world by virtue of
the predominant ideology in the communist states.

Socialist law is similar to the civil law system but with the following characterises:

(i) A greatly increased public law sector and decreased private law sector. 3

(ii) At the early stages of existence of each socialist state, the aim was the partial or total expulsion of
the former ruling classes from the public life (however, in all socialist states this policy gradually
changed into the policy of ‘one socialist nation without classes’);

(iii) The system directly discouraged diversity of political views;

(iv) The ruling Communist party members/leaders are usually subject to prosecution through party
committees in first place;

(v) Abolition of private property is usually considered as a primary goal of socialism, if not its defining
characteristic. Thus, near total collectivization and nationalization of property is encouraged;

(vi) There is low respect for individuals’ privacy and extensive control over private life by the ruling
party;

(vii) There is low respect for intellectual property. Such knowledge and culture is considered a right for
human kind and not a privilege as in the free market economies;

(viii) There are extensive social warrants of the state (the rights to a job, free education, free healthcare,
retirement at 60 for men and 55 for women, maternity leave, free disability benefits and sick leave

2
Quigley, J. "Socialist Law and the Civil Law Tradition". The American Journal of Comparative Law 37(1989)
(4): 781–808.
3
H. Patrick Glenn, Legal traditions of the world: sustainable diversity in law (Oxford University Press, 2007) 331
compensation, and subsidies to multi-children families) in return for a high degree of social
mobilization.

(ix) The judicial process lacks adversary character; public prosecution is considered as ‘provider of
justice.’

(x) 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.

(xi) Although the command economy approach of the communist states meant that property could not
be 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. Cases of development of common law into Socialist law are unknown
because of incompatibility of basic principles of these two systems (common law presumes influential
rule-making role of courts while courts in socialist states play a dependent role)

Religious Legal Systems

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.

The methodologies used in religious laws greatly vary. The use of Jewish Halakha for public law, for
example, has a static and unalterable quality, precluding amendment through legislative acts of
government or development through judicial precedent. On the other hand, it may be observed that
Christian canon law is more similar to civil law in its use of civil codes while Islamic Sharia law (and
Fiqh jurisprudence) is usually based on legal precedent and reasoning by analogy (Qiyas), and is thus
considered similar to common law. During the Islamic Golden Age, classical Islamic law may have had
an influence on the development of common law and several civil law institutions.

In some cases the religious edicts are intended purely as individual moral guidance. Canon law, for
example, is not a divine law, properly speaking, because it is not found in revelation. Instead, it is seen as
human law inspired by the word of God and applying the demands of that revelation to the actual
situation of the church. Canon law regulates the internal ordering of the Roman Catholic Church, the
Eastern Orthodox Church and the Anglican Communion. Canon law is amended and adapted by the
legislative authority of the church, such as councils of bishops, single bishops for their respective sees, the
Pope for the entire Catholic Church, and the British Parliament for the Church of England.

In other cases religious laws are intended and may be used as the basis for a country's legal system. The
latter was particularly common during the middle Ages and today in countries adopting the Islamic legal
system where Sharia (Islamic law) and Fiqh (Islamic jurisprudence) is the most widely used religious law
and is 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).

In Islamic systems, Ulema may be required to qualify for an Ijazah (legal doctorate) at a Madrasah
(school) before they are able to issue Fatwā.

Sharia law governs a number of Islamic countries, including Saudi Arabia, Pakistan and Iran, though
most countries use Sharia law only as a supplement to national law. It can relate to all aspects of civil law,
including property rights, contracts or public law.

Pluralistic Systems and Hybrid Legal Systems

Plural Systems
Legal pluralism is the existence of multiple legal systems within one geographic area. Plural legal
systems are particularly prevalent in former colonies, where the law of a former colonial authority may
exist alongside more traditional legal systems. When these systems developed, the idea was that certain
issues (e.g., criminal sanctions) would be covered by colonial law, while other issues (e.g., family and
marriage) would be covered by traditional law. Over time, these distinctions tended to break down and
individuals would choose to bring their legal claims under the system that they thought would offer them
the best advantage.

Legal pluralism also occurs when different laws govern different groups within a country. For example, in
India, Kenya and Tanzania, there are special Islamic courts that address concerns in Muslim communities
by following Islamic law principles. Secular courts deal with the issues of other communities.

It is important to note that modern Western legal systems can also be pluralistic. It is, thus, misleading to
discuss legal pluralism only in relation to non-Western legal systems.
Legal pluralism also exists to an extent in societies where the legal systems of the indigenous population
have been given some recognition. In Australia, for example, in Mabo v. Queensland (No 2), the decision
gave recognition to native title and thus elements of traditional Aboriginal law. 4 Elements of traditional
Aboriginal criminal law have also been recognised, especially in sentencing. This has, in effect, set up
two parallel sentencing systems.

Hybrid Systems
Hybrid systems arise where there is a mixture of notions form different legal systems coexisting with
each other at the same time. The most prominent example of a hybrid legal system is the Indian legal
system. India follows a mixture of civil, common law and customary or religious law. Separate personal
law codes apply to Muslims, Christians, and Hindus. Decisions by the Supreme Court of India and High
Courts are binding on the lower courts. Further, most of the laws are statutory and it also has a
constitution which signifies the civil nature of law in India.

Hybrid legal systems are also found in n South Africa and Greece where the systems are based on a
mixture of Civil law and common law. US law may also be viewed as hybrid legal systems to the extent
that there is a mixture of civil law, common and religious laws in the system.

4
(1992) 175 CLR 1.