Keith Mack
The legal system of a country is shaped by its unique history and individual variations. There are four major legal traditions: civil law, common law, customary law, and religious law. Common law is one of the most prevalent legal systems in the world, with approximately 40 countries following it, and another 60 using it as part of a mixed legal system. Countries that follow a common law system are typically former British colonies or protectorates, including the United States, Canada, India, and Australia. In contrast, civil law systems are more meticulous and less open to interpretation, and countries that follow civil law are typically former French, Dutch, German, Spanish, or Portuguese colonies or protectorates. Religious law systems are commonly seen in Islamic countries, with Sharia law governing Saudi Arabia and Iran, while Canon law is the internal ecclesiastical law governing the Catholic Church.
| Characteristics | Values |
|---|---|
| Legal System | Religious law, customary law, civil law, common law, or combinations of these |
| Religious Law | Sharia in Islam, halakha in Judaism, canon law in some Christian groups |
| Religious Law Countries | Islamic countries, including Saudi Arabia and Iran |
| Customary Law | Cultural customs and behaviours that are accepted as legal requirements or rules |
| Civil Law | Codified system of law that originated from Roman law |
| Civil Law Countries | France, Benelux countries, Italy, Romania, Spain, former colonies in Latin America, Africa, and the Middle East |
| Germany, Austria, Russia, Switzerland, Estonia, Latvia, Bosnia and Herzegovina, Croatia, Kosovo, North Macedonia, Montenegro, Slovenia, Serbia, Greece, Portugal, Turkey, Japan, South Korea, Taiwan | |
| Northern European countries such as Denmark, Norway, Finland, Iceland, and Sweden | |
| Common Law Countries | Former British colonies or protectorates, including the United States, Canada, Australia, India, Ghana, Kenya, Nigeria, and South Africa |
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Islamic law
Sharia law is a source of debate among Muslims and non-Muslims alike, particularly with regard to its place in the modern world and its compatibility with human rights, gender equality, and freedom of speech and expression. It is the most widely used religious law system, with about half of the world's Muslim-majority countries having Sharia-based laws. Most Muslims worldwide follow aspects of Sharia in their private religious practices.
The Islamic legal system consists of Sharia and fiqh (Islamic jurisprudence). It is based on both divine law, derived from the hadith of the Quran and Sunnah, and the rulings of ulema (jurists), who use methods such as ijma (consensus), qiyas (analogical deduction), ijtihad (research), and urf (common practice) to derive fatwā (legal opinions). During the Islamic Golden Age, classical Islamic law may have influenced the development of common law and several civil law institutions.
The role and mutability of Sharia in a changing world have become increasingly debated topics in Islam. Fundamentalists advocate for the complete and uncompromising implementation of "exact/pure Sharia," while modernists argue for its compatibility with human rights, democracy, minority rights, freedom of thought, women's rights, and banking.
Sharia law governs several Islamic countries, including Saudi Arabia and Iran, though most countries use Sharia law only as a supplement to national law. Islamic law varies by country, is influenced by local customs, and evolves over time. It is concerned with both ethical standards and legal rules, indicating what an individual is entitled or bound to do in law and what one ought, in conscience, to do or refrain from doing.
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Religious law
Sharia law, also known as Islamic law, is the most widely used religious law system and is one of the three most common legal systems in the world. It is based on divine law, derived from the Quran and Sunnah, and the rulings of ulema (jurists). Countries that govern based on sharia law include Saudi Arabia and Iran, though most countries use sharia law only as a supplement to national law.
Halakha is followed by Orthodox and Conservative Jews in both ecclesiastical and civil relations. No country is fully governed by halakha, but Jewish people may decide to have a dispute heard by a Jewish court and be bound by its rulings.
Canon law is the internal ecclesiastical law governing the Catholic Church, the Eastern Orthodox and Oriental Orthodox churches, and the individual national churches within the Anglican Communion.
While some countries have fully incorporated religious law into their legal system, others have established a degree of religious freedom. Most countries in Africa and Asia legally establish that freedom of religion is a right conferred to all individuals, though the extent to which this is enforced varies. Several countries in Asia have established a state religion, with Islam being the most common, followed by Buddhism. In Europe, virtually every country legally establishes religious freedom, and most also have anti-discrimination laws that specifically highlight religious freedom.
Some countries incorporate religious law into their legal system in varying degrees. For example, Nigeria operates largely on a common law system but also incorporates religious law in the northern states.
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Civil law
Countries that follow a civil law system include those that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, such as much of Central and South America, as well as most of Central and Eastern European and East Asian countries. In Continental Europe, most jurisdictions have civil codes, and the French Code Civil and the German BGB are the most influential civil codes. Louisiana is the only U.S. state with a civil law heavily based on French and Spanish codes, while Quebec in North America also has a civil code. In Asia, countries with civil codes include Indonesia, Japan, Kyrgyzstan, and Lebanon.
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Customary law
Contemporary national legal systems are generally based on one of four major legal traditions: civil law, common law, customary law, religious law, or a combination of these. Customary law is often unwritten and based on long-standing traditions, customs, and rules that a community accepts as binding. It is frequently administered at the local level, in accordance with tradition and dispute resolution mechanisms. However, in some countries, it is enforced within the modern court system.
However, some scholars have critiqued the concept of customary law, arguing that because its content derives from practice, there are no objective rules. This critique, known as rule scepticism, suggests that it is challenging to distinguish between behaviour that adheres to law and behaviour that is driven by other factors. Nevertheless, other scholars like H. L. A. Hart have countered this argument, providing criteria to decipher what constitutes "law" within a particular community.
Many countries that formally recognize customary law require that its enforcement does not conflict with statutes, public policies, or enumerated values and principles. For example, in the United States, the customs and traditions of Native American tribes are binding and enforceable in tribal courts. Similarly, in South Korea, customary law is considered in the application of civil, commercial, criminal, and family law. Customary international law is established by demonstrating state practice and opinio juris.
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Common law vs. civil law
There are two main types of legal systems in the world: Common Law and Civil Law. Both systems have their unique characteristics and are employed by countries across the globe.
Common Law
Common law, also known as case law, is a legal system that originated in medieval England. It is heavily influenced by Anglo-Saxon law and, to a lesser extent, the Norman conquest of England, which introduced legal concepts from Norman law, which in turn had its origins in Salic law. Common law systems are characterised by their reliance on judicial precedent, where prior court decisions are recognised as legally binding. Common law systems are typically found in countries that were former British colonies or protectorates, including the United States, Canada, Australia, India, and many countries in Africa.
In common law systems, judicial decisions are binding and can only be overturned by the same court or through legislation. There is extensive freedom of contract, with few provisions implied by law, although provisions protecting private consumers may be implied. Additionally, in a common law system, everything is permitted unless expressly prohibited by law. This makes it a less prescriptive system compared to civil law.
Civil Law
Civil law, on the other hand, is rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, notably with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). Civil law systems rely on legal codes as the primary source of law rather than judicial precedent. Civil law is the most common legal system in the world, practised in about 150 countries. Civil law countries include those that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, such as those in Central and South America, Central and Eastern Europe, and East Asia.
Civil law systems are generally more prescriptive than common law systems. While civil law judges tend to give less weight to judicial precedent, they rely on legislative enactments as legally binding sources. Contracts in civil law systems may be shorter since provisions can be implied and ambiguities can be resolved by operation of law. Additionally, in civil law jurisdictions, unless the contract specifies arbitration, it will be enforced by administrative courts.
In summary, the key differences between common law and civil law systems lie in their sources of authority, with common law relying on judicial precedent and civil law relying on legal codes. These differences influence the level of prescriptiveness and the approach to contracts in each system.
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Frequently asked questions
Many countries don't follow a common-law system, instead following a civil law system. These include France, Italy, Spain, Russia, Japan, and many more.
Common law is based on the decisions of judges in similar cases, with new laws and statutes being passed by a legislature. Civil law is interpreted rather than developed by judges, with only legislative enactments being considered legally binding.
Common-law systems are typically found in countries that were former British colonies or protectorates, including the United States, Canada, India, and Australia.
