Kara Sears
There are two main types of legal systems in the world, with most countries adopting features from one or the other: Common Law and Civil Law. Common law systems trace their history to English common law, while civil law systems trace their history through the Napoleonic Code back to Roman law. Common law systems place great weight on precedent, while civil law judges tend to give less weight to judicial precedent. Common law countries are typically former British colonies or protectorates, including the United States, Canada (excluding Quebec), Australia, New Zealand, most of the United Kingdom (England, Wales, and Northern Ireland), South Africa, Ireland, India (excluding Goa and Puducherry), Pakistan, Hong Kong, Bangladesh, and many other places.
| Characteristics | Values |
|---|---|
| Countries that adopt common law | Canada (except Quebec), Australia, New Zealand, the UK (England, Wales, and Northern Ireland), South Africa, Ireland, India (except Goa and Puducherry), Pakistan, Hong Kong, the US (except Louisiana and Puerto Rico), Bangladesh, Ghana, and many other places |
| Historical origins | English common law, which developed after the Norman Conquest and through the medieval period and Enlightenment |
| Sources of law | Judicial decisions and precedents, rather than solely written laws or statutes |
| Contracts | Few provisions are implied into a contract by law, so contracts tend to be longer |
| Corporate governance | Corporations should be run to maximize value for shareholders |
| Comparison to civil law | Places greater weight on precedent than civil law |
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What You'll Learn
Common law in former British colonies
The common law system, which originated in England, was inherited by the Commonwealth of Nations and almost every former colony of the British Empire (Malta being an exception). Common law is a system of law whose sources are the decisions in cases by judges. It is usually contrasted with civil law systems, which are used in Continental Europe, Mexico, most of Central and South America, and some African countries including Egypt and Francophone countries in west Africa.
English common law was spread to British colonies in North America, South Africa, Asia, Australia, and the Pacific. In the 17th century, the British East India Company brought English law to its trading posts and factories in India. The importation of African slaves to North America required the implementation of European-designed laws regulating master-slave relations. In Australia, colonizers adopted the practice of terra nullius, thus not recognizing native claims to land and securing European land titles.
In colonies with a sparse indigenous population and continuous European immigration, English common and statutory law were claimed by settlers as the one and only law of the new colonies. However, in colonies with a significant indigenous population, local judges generally handled cases according to local customary law, establishing a practice of legal pluralism. Over time, British administrators recognized the need to adapt their imported laws according to local circumstances, and they amended English common and statutory law to fit the needs of the colonies.
Many former British colonies retain the common law system today, including Canada (excluding Quebec), Australia, New Zealand, the United States (excluding Louisiana and Puerto Rico), India (excluding Goa and Puducherry), Pakistan, Bangladesh, and many others. These common law systems give great weight to judicial precedent and the style of reasoning inherited from the English legal system.
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Civil law in Continental Europe
Civil law, also known as Romano-Germanic law, is the most widespread legal system globally, in force in about 150 countries and covering 60% of the world's landmass. Civil law is primarily inspired by classical Roman law, particularly Justinian law, which provided a model for contracts, rules of procedure, family law, wills, and a strong monarchical constitutional system. Over time, Roman law was adapted and influenced by canon law, feudalism, chivalry, local customs, and culture.
In Continental Europe, civil law is the dominant legal system, with countries adopting various codes and adaptations. Denmark, Sweden, Prussia, France, and Austria were among the first European countries to codify their private laws. The French codes, influenced by the Napoleonic Code, were particularly influential and were adopted with modifications in several countries, including Poland, Louisiana, Switzerland, the Netherlands, Serbia, Italy, Romania, Portugal, and Spain. Germany and Switzerland later developed their own codifications, which were also adopted by their colonies.
The Swiss civil code, for example, influenced the civil code of the Republic of Turkey, which was adopted during Mustafa Kemal Atatürk's presidency as part of progressive reforms and secularization. Scandinavian countries, while having civil codes, are not typically considered civil law jurisdictions.
The contrast between civil law and common law, predominantly found in Anglo-American countries, has blurred over time. Common law systems, such as England and its former colonies, traditionally relied on judicial decisions and precedents, while civil law systems emphasize written codes. However, common law countries are increasingly adopting codes in various areas, and civil law countries are incorporating jurisprudence similar to case law.
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US common law and customary law
Common law is usually contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems trace their history to English common law, while civil law systems trace their history through the Napoleonic Code back to Roman law. Common law systems place great weight on precedent, while civil law judges tend to give less weight to judicial precedent.
Common law developed in England, influenced by Anglo-Saxon law and, to a lesser extent, the Norman conquest of England, which introduced legal concepts from Norman law. Common law was later inherited by the Commonwealth of Nations, and almost every former colony of the British Empire has adopted it.
The United States uses common law at the state and territorial levels, excluding Louisiana and Puerto Rico. Common law in the US has evolved over time, with judges "making law" for hundreds of years. The reasons given for a decision are often more important in the long run than the outcome of a particular case, and judicial opinions are usually quite long, giving rationales and policies that can be balanced with judgment in future cases. The Uniform Commercial Code (UCC) is an example of a codified framework in the US, widely regarded as one of the most significant developments in American law.
Customary law is a form of local law that has been practised since time immemorial. It is usually used alongside common or civil law. Customary law continues to exist and have great influence in Scandinavian countries, and it is also used in some developing countries. In the US, customary law has been used in the past in places like New York and New Netherland.
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Islamic law and English common law
Islamic law, also known as religious law, is one of the three major legal systems in the world, alongside common law and civil law. Islamic law covers all aspects of life, from daily norms to sophisticated business issues. It is currently in power in several countries, including Saudi Arabia, Bangladesh, Gambia, Libya, Mauritania, Morocco, Oman, and Yemen. In these countries, Islamic jurisprudence, or Sharia law, is the primary source of legislation.
Sharia law is also used in other countries, such as Malaysia, but only as a supplement to national law. In Malaysia, Islamic banking was introduced in 1983 with the establishment of the Bank Islam Malaysia Berhad (BIMB). However, the country's legal system is primarily based on English common law, a legacy of British colonisation.
Common law, also known as case law or precedent, is a legal system that developed in England and is now used in many countries, including Canada, Australia, New Zealand, the United Kingdom, South Africa, Ireland, India, Pakistan, Hong Kong, and the United States. It is characterised by its reliance on judicial decisions and precedents rather than solely on written laws or statutes. This means that judges play a crucial role in interpreting and applying the law, often building upon previous decisions made in similar cases.
While Islamic law and English common law have distinct features and historical origins, they both ultimately serve the same purpose: to regulate the behaviour of individuals, businesses, and organisations within a society. However, Islamic law is rooted in religious teachings and interpretations of divine law, while common law is generally considered to have emerged from customary practices and legal traditions.
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Common law and case law
Common law is a legal system that is based on judicial decisions and precedents rather than solely on written laws or statutes. It is usually contrasted with the civil law system, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems place great weight on precedent and are deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. Common law is practiced in Canada (excluding Quebec), Australia, New Zealand, most of the United Kingdom (England, Wales, and Northern Ireland), South Africa, Ireland, India (excluding Goa and Puducherry), Pakistan, Hong Kong, the United States, Bangladesh, and many other places.
The common law developed in England, influenced by Anglo-Saxon law and, to a lesser extent, by the Norman conquest of England, which introduced legal concepts from Norman law. Common law was later inherited by the Commonwealth of Nations, and almost every former colony of the British Empire has adopted it. The doctrine of stare decisis, also known as case law or precedent by courts, is the major difference between common law and codified civil law systems.
Case law refers to the law that comes from court and tribunal decisions. It is based on the decisions that judges make when they hear and decide cases. Case law is built up from individual cases and sets a precedent for future cases. Case law is also known as common law, and the two terms are often used interchangeably. However, it is important to note that not all case law is common law. The other type of case law interprets a statute. When a legislature enacts a statute, the language used may not always be clear, and cases involving statutes may be brought to court to clarify ambiguities or interpret clauses in the statute.
In common law systems, precedents are maintained over time through court records and are historically documented in collections of case law referred to as yearbooks and law reports. Common law is considered "unwritten law" and is often referred to as "judge-made law". Judges are considered "referees" between two adversarial lawyers presenting their versions of the facts, and the jury plays a central role in determining the facts of a case. The evolution of common law is in the hands of judges, who have "made law" for hundreds of years.
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Frequently asked questions
Many countries have a common law legal system, including the United States, 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, Bangladesh, and Ghana.
A common law legal system is one where the legal system is based on judicial decisions and precedents rather than solely on written laws or statutes.
Common law developed in England, influenced by Anglo-Saxon law and, to a lesser extent, the Norman conquest of England, which introduced legal concepts from Norman law. Common law was later inherited by the Commonwealth of Nations and almost every former colony of the British Empire.
