Anaya Nolan
Common law is a legal system that is deeply rooted in stare decisis, a Latin phrase that means to stand by things decided. It is primarily developed through judicial decisions and legal precedents rather than statutes. Common law is practised in various countries, including the United States, Canada, Australia, and the United Kingdom. However, it is not the only legal system in the world. There are several other types of laws and legal systems that exist alongside common law, such as civil law, customary law, and religious law. Civil law, which originated in mainland Europe, centres around a comprehensive code of statutes that outline procedures and punishments. Religious law, such as Islamic Sharia law, is based on legal precedent and reasoning, while customary law varies based on local customs and traditions. This diversity of legal systems highlights the complexity and richness of the global legal landscape, where each system has its own unique advantages and influences.
| Characteristics | Values |
|---|---|
| Type of Legal System | Civil law |
| Description | Comprehensive, codified set of legal statutes created by legislators |
| Origin | Civil law originated in mainland Europe |
| Basis | Clear rules for how judges need to rule for specific disputes |
| Binding | Court decisions are not binding in other cases, even if the facts are similar |
| Judicial Decisions | More emphasis on judicial decisions than in common law |
| Sources of Law | Greater weight given to certain sources of law than others |
| Adaptability | Less adaptable than common law |
| Protections | Specific legislation to protect citizens' interests |
| Contracts | More provisions are implied into the contract by law |
| Emphasis | Emphasis on liquidation in case of financial trouble |
| Religious Law | Sharia law, Halakha, Canon law |
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What You'll Learn
Civil law
Unlike common law, civil law court decisions are not binding in other cases, even if the facts are similar. Civil law originated in mainland Europe and is still used in France and OHADA countries, as well as in Louisiana in the United States.
In civil law jurisdictions, the process focuses on liquidation, although some countries are now permitting reorganizations of debtors before they become insolvent. Civil law countries also have doctrines that prohibit or severely restrict a target company and its subsidiaries from giving guarantees in connection with the acquisition of the target company's shares.
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Religious law
Most religious law gradually came to be applied in its most institutional form, and even then, only to its own organizations and to familial or contractual matters for its adherents. In some jurisdictions, religious law may apply only to that religion's adherents, while in others, it may be enforced by civil authorities for all residents. A state religion or established church is a religious body officially endorsed by the state. A theocracy is a form of government in which a God or deity is recognized as the supreme civil ruler.
Examples of religiously derived legal codes include Christian canon law, Jewish halakha, Islamic sharia, and Hindu law. Within the framework of Christianity, there are several possible definitions for religious law. One is the Mosaic Law (from what Christians consider to be the Old Testament), also called divine law or biblical law; the most famous example is the Ten Commandments. Christian views of the Old Covenant vary and are to be distinguished from Christian theology, ethics, and practice. The term "Old Covenant", also referred to as the Mosaic covenant and the Law of Moses, refers to the statements or principles of religious law and religious ethics codified in the first five books or Pentateuch of the Old Testament. Views of the Old Covenant are expressed in the New Testament, such as Jesus' antitheses of the law, the circumcision controversy in Early Christianity, and the Incident at Antioch and position of Paul the Apostle and Judaism. Most Christians hold that only parts are applicable, while some Protestants believe none are applicable.
Sharia, also known as Islamic law, is the moral code and religious law of Islam. Sharia is derived from two primary sources: the precepts set forth in the Quran and the example set by the Islamic prophet Muhammad in the sunnah. Islamic jurisprudence (fiqh) interprets and extends the application of sharia to questions not directly addressed in the primary sources (the Quran and the sunnah) by including secondary sources. These secondary sources usually include the consensus of the sahabah (companions of the prophet) and ulama (religious scholars) embodied in ijma, as well as analogy from the Quran and sunnah through qiyas. In the Maliki school of law, 'amal ahlil madinah (the practices of the people of Medina) is also included. Muslims believe that sharia is Allah's law, but they differ as to what exactly it entails.
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Customary law
In other countries, customary law principles may need to be proven as a question of fact or supported by written documents or prior legal decisions. Customary law practices have faced criticism for not aligning with international human rights norms, and some national governments have taken steps to address these concerns.
The recognition of customary law involves determining which practices and norms constitute it. Scholars like John Comaroff and Simon Roberts have characterized customary law norms, detailing the body of norms that constitute Tswana law. They defined "mekgwa le melao ya Setswana" as norms that become customary law through traditional usage.
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Sharia law
Sharia, or Shariah, is a religious law that forms a part of the Islamic tradition, based on the scriptures of Islam, particularly the Quran and the sayings and practices attributed to the Prophet Mohammed, which are known as the hadith. Sharia is derived from the Arabic word 'shari'ah', which means 'path to water' or 'the correct path'. It is a code for living that Muslims should adhere to, including prayers, fasting, and donations to the poor.
Sharia is a source of debate among Muslims and non-Muslims, particularly when contrasted with modern legal regimes in predominantly secular countries. It is often criticised for its cruel criminal punishments and restrictions on the lives of women and minority groups. However, there is diversity in how governments interpret and apply Sharia, and its role in legal systems and individuals' lives is often misunderstood.
Sharia is not the same as Islamic law. Muslims believe that Sharia refers to the perfect, immutable values understood only by God, while Islamic laws are based on interpretations of Sharia. Interpreting Sharia requires deep knowledge of the Quran and Sunna, fluency in Arabic, and expertise in legal theory.
In the 21st century, approaches to Sharia vary widely, and its role in a changing world has become an increasingly debated topic in Islam. While fundamentalists advocate for the complete implementation of "pure Sharia", modernists argue that it should be brought into line with human rights, democracy, minority rights, freedom of thought, women's rights, and banking.
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Canon law
The Code of Canon Law is the Catholic Church's governing code. The Latin or Western Church follows the 1983 Code of Canon Law, issued by Pope St. John Paul II. This code is a revision of the 1917 Code of Canon Law, which was the first major codification of canon law. The 1917 code was reformed and published following the Second Vatican Council. The 1983 code contains eighty-four canons that call for or permit legislative action by episcopal conferences. The United States Conference of Catholic Bishops has taken action on twenty-nine of these canons, establishing particular legislation for the dioceses of the United States.
The Code of Canons of the Eastern Churches, issued in 1990, governs the Eastern Catholic Churches. This code is separate from but parallel to the 1983 Code of Canon Law. It is the first comprehensive code of church law governing all Eastern Catholic Churches.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided".
Civil law, customary law, and religious law are three other types of law besides common law. Civil law is a comprehensive, codified set of legal statutes created by legislators. Customary law is based on traditions and customs that are recognised by a community as legal obligations. Religious law refers to the use of religious documents as a legal source, such as Sharia law in Islam or Halakha in Judaism.
Common law is practiced in Canada (excluding Quebec), Australia, New Zealand, the United Kingdom (England, Wales, and Northern Ireland), South Africa, Ireland, India (excluding Goa and Puducherry), Pakistan, Hong Kong, the United States (excluding Louisiana and Puerto Rico), Bangladesh, and many other places.
Common law promotes stability and consistency because outcomes are based on previous caselaw rather than subjective viewpoints. It is also efficient, as judges only need to follow precedent, and adaptable to unforeseen situations as higher courts can overrule prior decisions.
Yes, the two systems are often combined. For example, the Court of Justice in the European Union takes a mixed approach, combining civil law with an attachment to the importance of case law.
