Keith Mack
The legal system of a country is shaped by its unique history and incorporates individual variations. The four major legal traditions are civil law, common law, customary law, and religious law. Civil law is interpreted by judges and based on constitutions, statutes, or regulations. Common law, also known as case law, is based on precedents set by previous judicial decisions. Common law systems follow the doctrine of stare decisis, where courts are bound by their own past rulings. Religious law includes Sharia in Islam, Halakha in Judaism, and Canon law in some Christian groups. Customary law is also recognized as a major legal tradition. Common law is practiced in many countries, including Canada (excluding Quebec), Australia, New Zealand, the United Kingdom, and the United States, while civil law is prevalent in France, Germany, Scandinavia, and many other countries.
| Characteristics | Values |
|---|---|
| Legal System | Civil law, common law, customary law, religious law, or combinations of these |
| Civil Law Countries | France, Benelux countries, Italy, Romania, Spain, and their former colonies; Germany, Austria, Russia, Switzerland, Estonia, Latvia, Bosnia and Herzegovina, Croatia, Kosovo, North Macedonia, Montenegro, Slovenia, Serbia, Greece, Portugal, Turkey, Japan, South Korea, Taiwan; Scandinavian countries |
| Common Law Countries | Canada (excluding Quebec), Australia, New Zealand, UK (England, Wales, Northern Ireland), South Africa, Ireland, India (excluding Goa and Puducherry), Pakistan, Hong Kong, US (state and territorial levels excluding Louisiana and Puerto Rico), Bangladesh, Nigeria, Malta |
| Religious Law | Sharia in Islam, halakha in Judaism, canon law in some Christian groups |
| Religious Law Countries | The UK and Ireland (Anglican Communion); countries with Islamic law include Nigeria (in the northern states) |
| Customary Law Countries | EU countries (Iceland, Liechtenstein, Norway, Switzerland, and the UK) |
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Common law systems
Common law courts generally explain the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and they often interpret wider legal principles. The analysis that constitutes a precedent binding on other courts is called ratio decidendi.
Common law is the basis of the legal systems of many countries, including Australia, Canada (excluding Quebec), New Zealand, the United States (excluding Louisiana and Puerto Rico), India (excluding Goa and Puducherry), and many other countries that were formerly colonies of the British Empire or Commonwealth countries.
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Civil law systems
Civil law, also known as Romano-Germanic law, is the most widespread legal system in the world, practiced in about 150 countries. It is rooted in the Roman Empire, with heavy influence from the Napoleonic Code (1804) and the German Civil Code (1900). Civil law systems are characterized by their reliance on legal codes as the primary source of law, rather than judicial precedent.
Civil law is found on all continents and covers about 60% of the world's landmass and population. It is particularly prevalent in Continental Europe, where most jurisdictions have civil codes. France and Germany have the most influential civil codes, and their systems have been adopted or adapted by many other countries. For example, the French codes were imported into areas conquered by Napoleon and later modified and adopted in Poland, Louisiana, Switzerland, the Netherlands, Serbia, Italy, Romania, Portugal, and Spain. The German Civil Code, on the other hand, inspired the civil codes of Japan, South Korea, and Switzerland.
The Italian civil code has also influenced other countries, including Portugal, the Netherlands, Lithuania, Brazil, and Argentina. These countries have adopted innovations from Italian legislation, such as the unification of civil and commercial codes. The Swiss civil code, influenced by both German and French law, has been adopted in Turkey with minor modifications.
Civil law is also found in some countries that were once colonized by continental European nations, such as Egypt, which has a significant influence in Africa and the Middle East. In mixed jurisdictions, civil law coexists with other legal traditions, such as common law, customary law, or Islamic law. This is particularly common in America, Africa, Asia, and Europe.
While civil law systems generally place less emphasis on judicial precedent, there are some exceptions. For example, in Sweden, a civil law country, case law plays an important role, with the highest courts setting precedents that are binding in practice, though not formally.
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Religious law
Christian canon law is more similar to civil law in its use of codes. A common type of case in canon law relates to requests to grant an annulment of marriage after a civil divorce, as the doctrine of the Roman Catholic Church does not recognize divorce.
In the past, Tibet had a Buddhist-influenced legal system from 1940 to 1959. The Vinaya, a canonical text outlining the rules for monks, was one of the five major sources of Tibetan legal concepts.
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Customary law
There are generally considered to be five legal systems in the world today: civil law, common law, customary law, religious law, and mixed legal systems.
In 1995, the President of Kyrgyzstan announced a decree to revitalise the aqsaqal courts of village elders, which would have jurisdiction over property, torts, and family law. As of 2006, there were approximately 1,000 aqsaqal courts throughout Kyrgyzstan, including in the capital of Bishkek. Similar courts exist in other countries of Central Asia. The Somali people in the Horn of Africa follow a customary law system called xeer, which is prevalent in Somalia and in Somali communities in the Ogaden.
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Nordic countries
The legal systems of the five Nordic countries—Denmark, Finland, Iceland, Norway, and Sweden—are generally regarded as a subgroup of civil law or as an individual legal body. Nordic law is sometimes included among civil law systems but is also counted as separate from this tradition. The legal systems in the Nordic countries have long histories, with evidence of local and regional systems in medieval written sources, including the Icelandic sagas and law codes such as the Jutland Law from 1241 in Denmark and Magnus Law Mender's Landslov from the late 13th century in Norway.
In the Nordic countries, the legal rights of individuals are guaranteed by their constitutions, which enshrine fundamental principles such as full equality before the law, guaranteed access to due process and professional representation, and the innocence and anonymity of the accused until proven guilty. The courts have the authority to create laws, and statutory law is supplemented by customary law and case law. Hearings and trials in the courts of first instance are often conducted by panels composed of one or more professional judges and several lay judges, and it is these panels that decide cases, not juries.
While the Nordic countries follow similar legal theories, they have developed their own legal standards. Since 1872, the five states have obtained uniform legislation, especially in areas of contracts and commerce, as well as those concerned with family, nationality, and extradition. The Stockholm Institute for Scandinavian Law (SISL) proclaims that as all of the Nordic states follow the civil law system, Scandinavian law as a whole should be classified as civil law rather than common law.
The development of the early modern states of the area involved the further standardization of law codes, court institutions, and procedures. For example, in Denmark, Christian V initiated the compilation of a uniform national law code that was introduced in 1683. In Norway, a code based on earlier sources was completed in 1604 during the reign of Christian IV and was replaced in 1687 by a more Danish-based one. Sweden replaced Magnus Eriksson's compilation with a new, unified code in 1734, which also applied to the Finnish parts of the Swedish kingdom. All of these fundamental codes subsequently underwent numerous revisions, and contemporary law in the Nordic countries is based on compiled codes and/or comprehensive collections of statutes that date mainly from the late 20th century.
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Frequently asked questions
Many countries have legal systems based on case law, also known as common law, including Canada (excluding Quebec), Australia, New Zealand, the United Kingdom (England, Wales, and Northern Ireland), South Africa, Ireland, India (excluding Goa and Puducherry), Pakistan, Bangladesh, and Hong Kong.
Case law is a legal system based on precedents set by previous judicial decisions rather than laws based on constitutions, statutes, or regulations.
Case law involves using the detailed facts of a legal case that has been resolved by courts or similar tribunals. These past decisions are referred to as "case law" or "precedent," and judges are bound to them when formulating their positions.
Civil law, also known as Roman law, is the most widespread legal system by landmass and population. It is interpreted rather than developed or made by judges, and only legislative enactments are considered legally binding. Common law, on the other hand, follows the doctrine of stare decisis, where courts are bound by their own previous decisions in similar cases.
While religious law is one of the bases for some national legal systems, it is not typically the sole governing system. For example, while Orthodox and Conservative Jews follow Halakha in civil and ecclesiastical relations, no country is fully governed by it. Similarly, Canon law governs the internal policies of various Christian denominations but is not the legal system of any country.
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