SANNI OPEOLUWA ADEBOLA

14/40IA084
JIL 201 (NIGERIAN LEGAL SYSTEM)
DR. A.A OBA

IDENTIFY FIVE DISTINCT LEGAL TRADITIONS IN THE

CONTEMPORARY WORLD AND THEIR AREAS OF
INFLUENCE AND DISCUSS THE CHARACTERISTICS OF ANY
FOUR OF THEM.
INTRODUCTION

We ordinarily use the term ‘law’ to mean a body of rules to guide human action. 1 In the strict legal
sense however, law refers to obligatory rules of conduct, usually backed by sanction. Law means
different things to different sets of people. The opinion one holds about law depends on the angle from
which one views it.2 This is why there is no single accepted definition of the concept. Different laws
apply in different places. For instance, in the Northern part of Nigeria, Adultery is a crime while in the
Southern part there is no such thing. As such, when all the applicable laws in a particular place share
characteristics distinct from other sets of laws, applicable in other places, they may be called a legal
system. There are several legal systems in the world today. They may also be called legal traditions.
As will be shown in this paper, some of them may be limited to a particular geographical area, while
others may cover whole regions.

THE CONCEPT OF LEGAL SYSTEMS AND LEGAL FAMILIES

While the two concepts have been used interchangeably, they may be distinguished. A legal tradition
has been defined as a set of "deeply rooted historically conditioned attitudes about the nature of law,
the role of law in the society and political ideology, the organisation and operation of a legal system." 3
These legal traditions can also be called legal families. "A legal system is an operating set of legal
institutions, procedures and rules... a legal tradition puts the legal system into cultural perspective" 4

It may be said that most legal systems in the world today possess characteristics which are
predominantly identified with one or more of the three major legal traditions or families, i.e civil law,
Common law and (at least until recently) Socialist law.

According to Zweigert and Kost, an examination of certain characteristics is necessary for an adequate
classification of legal systems into respective families. It is this classification that enables us to
determine their "juristic style".5 The characteristics advocated by them are: historical
background/development, characteristic mode of thought, distinctive institutions, legal sources and
ideology. Thus, in order to do justice to the subject matter of this paper, the mode prescribed by
Zweigert and Kost will be utilized.

The essence of a classification into legal families is to enable us assimilate a great mass of detail.
However, any such classification will be heavily influenced by the area of law being contemplated and
the particular period/era of which one is speaking. 6 We’ll be looking at five distinct legal systems and
they are: Common Law, Civil Law, Islamic Law, Customary Law and Canon Law.

COMMON LAW

The term Common law is used to refer to the main body of English unwritten law that evolved from
the 12th century onward. The name comes from the idea that English medieval law, as administered
by the courts of the realm, reflected the “common” customs of the kingdom. 7

1
Appadorai A, Substance of Law, 2nd ed, p. 15
2
Obilade A.O, Nigerian Legal System, 1st ed, p. 3
3
Merryman 1977
4
Ibid
5
Zweigert K & Kost H, An Introduction to Comparative Law, 2nd ed,p.69
6
Ibid, p. 66-67
7
Heathcote W. "Common Law", Microsoft Student 2009. Redmond, WA: Microsoft Corporation, 2008.
This system is mostly found in former British colonies and several English speaking countries. Some
of the countries that adopt common law include Ireland, Wales, England, Australia, the United States,
Singapore, Pakistan, India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong
Kong and Nigeria. Some of its characteristics include:

1. Historical background/development: Developed from a large body of rules founded on unwritten

customary law, evolved and developed over the centuries by the courts. It is judge made law. Its
principles are derived and handed down in several decided cases. It is usually extended either by
colonisation or adaptation.8

2. Characteristic mode of thought: It proceeds from case to case. A lawyer in a common law
jurisdiction is more likely to reason in terms of what the court would do in a particular situation.
Statutes seek generally to build and improve on existing case law and as such, even when
supposedly comprehensive statutes are passed, they are usually construed in light of the preceding
case law as guides to interpretation.9

3. Distinctive institutions: The peculiar doctrine of Judicial Precedent in use here. Other typical legal
institutions include tort, trust, agency, estoppel and consideration. 10 The common law systems also
prefer an accusatorial system of dispute resolution.

4. Legal sources: Historically, the legal sources here are predominantly found in precedents.
However, codes are now present in several Common law jurisdictions and even the US has more
codified laws than any other civil law System. However, codes in Common law jurisdictions are
often based on "pre-existing law" (usually a combination of statutes and cases) and is neither
designed, nor intended to be formulations of all inclusive rules.

5. Ideology: There is a high reliance on the discretion of judges who are not so bound by codes as
their civil law counterparts.11 Hence the submission of Wendell Holmes that "the prophecy of what
the courts will do and nothing else is what I mean by law."

CIVIL LAW

This system is more or less the direct counterpart of the Common law system. It has its origins in
Roman law especially the Corpus Juris Civilis issued by Emperor Justinian in A.D 529. 12 This
historical tie makes the Civil law System one of the oldest surviving legal traditions in the world
today.

The Civil law System is also called the Continental legal System or European legal System. It is
another of the most prevalent legal systems in the contemporary world. Countries following a civil law
system are typically those that were former French, Dutch, German, Spanish or Portuguese colonies or
protectorates (like Angola, Aruba and Brazil), including much of Central and South America. Most of
the Central and Eastern European and East Asian countries also follow a civil law structure.

8
Zweigert K and Kost H, supra, p. 86
9
Wex Legal Dictionary, Legal Information Institute, <https://www.law.cornell.edu/wex/legal/systems>, accessed on 4th
January 2016.
10
Zweigert K and Kost H, op cit, p. 86
11
Public-Private Partnership in Infrastructure Resource Center, Common Law v. Civil Law, <ppp.worldbank.org/public-
private-partnership/legislation-regulation/framework-assessment/legal-systems/common-vs-civil-law>, accessed on 4 th
January 2016.
12
List of National legal Systems, Wikipedia, https://en.m.wikipedia.org/wiki/List of national legal systems, accessed on 4th
January 2016
1. Historical background/development: They have Roman law origins, strong influence of the French
civil code, the subsequent influence of the German civil code, the Roman notions of codification
and systematization of concepts. Civil law was formulated, compiled and refined in the
universities, later codified and the given statutory force by the legislature.

2. Characteristic mode of thought: They think in abstract, conceptual and symmetrical terms. It
proceeds from general principle to general principle. They are marked by a tendency to use
abstract legal norms, to have a well-articulated system containing well defined areas of law and to
think up and think in juristic constructions.13

3. Distinctive institutions: Direct action, oblique action and abuse of right form some of its
distinctive institutions.14 It is also inquisitorial, as against the Accusatorial system preferred in
Common law jurisdictions.

4. Legal sources: The legal sources in civil systems are predominantly codified. In civil law systems,
a code is an authoritative, comprehensive and systematic collection of general clauses and legal
principles, divided into books or parts dealing in a logical fashion with the law relating thereto.
Civil law codes are therefore regarded as the primary source of law, to which all other sources are
subordinate, and often the only source of law on a particular matter. 15 A greater reliance on the
opinions of legal or doctrinal writers also manifests in these systems.

5. Ideology: They plan and systematize everyday matters as comprehensively as possible,

traditionally seeking to enunciate universally applicable principles, clearly set out for the citizen.

ISLAMIC LAW

This is another of the ubiquitous legal systems in the world. The Islamic legal system is based on
divine law as revealed to the Prophet Muhammad in A.H 32. The Islamic legal system of Sharia
(Islamic law) and Fiqh (Islamic jurisprudence) is the most widely used religious law, and one of the
most common legal systems in the world alongside common law and civil law.

Islamic law is applied in most of the Middle East and several parts of Africa. Afghanistan, Yemen,
Iran, Egypt, Nigeria, The Gambia, Libya, Mauritania, Morocco, Oman, Saudi Arabia and Sudan are
some of the countries that apply Sharia. Though, it is usually applied as a supplement to national law.

1. Historical background/development: It has divine law origins, deriving from the revelations
bestowed upon Prophet Muhammad in A.H 32. It largely developed through the juristic exertions
of the Prophet’s companions and their companions. The final form of the Quran as it exists today
and the Islamic schools of thought are attributable to them.

2. Characteristic mode of thought: There is a recognition that no aspect of a Muslim's life is beyond
the divine rules laid down in the Quran. Hence, as far as they are concerned, Sharia is not just a
legal system, it is a way of life.

3. Distinctive institutions: The Ijma, Qiyas and ijtihad are just some of its distinctive institutions.
The ijma for instance must have the agreement of all the scholars for it to be valid. As such, all
opinions must be in consonance.

13
Zweigert K and Kost H, p. 90
14
Peter De Cruz, Comparative Law in A Changing World, p. 46
15
Ibid, p.46
4. Legal sources: It is based on both divine law, derived from the Quran and Sunnah, and the rulings
of Ullama (jurists), who used the methods of Ijma (consensus), Qiyas (analogical deduction),
Ijtihad (research) and Urf (common practice) to derive Fatwā (legal opinions).16

5. Ideology: The Sharia is believed to be unique; it is applicable in all situations and epochs without
necessarily being mutable. However, it is flexible enough to avoid rigidity and immutable enough
to be constant.

CUSTOMARY LAW

Practically all legal systems in the world today have their origins in customary law. In relation to
family and land law, and questions of dispute resolution, the majority of Africans still live under
indigenous customary law. The rules of such law vary enormously, partly because of the great
differences in race, language, culture and life style between the various tribes and people on this vast
continent.17 Customary international law is also unwritten and derives from the actual practices of
nations over time. One example of customary international law is a nation’s right to use the high seas
for fishing, navigation, over flight, and submarines. Another is the rule that a nation's boundaries do
not exceed 200 nautical miles offshore.

Customary law is also applied as a supplement to national law and may, in some cases, be stronger
than the written laws. Countries that apply customary law, either a conventions or customs are Britain,
Nigeria,

1. Historical background/development: It derives from the practices and customs of societies over
time. These practices may be either religious or social; as such there is usually a resort to the
spiritual in Customary law traditions.

2. Characteristic mode of thought: The potency of customary law depends on its acceptance by
members of the society. Customary law is recognized, not because it is backed by the power of
some strong individual or institution, but because each individual recognizes the benefits of
behaving in accordance with other individuals' expectations, given that others also behave as he
expects.18

3. Distinctive institutions: The modern concept of Alternative Dispute Resolution has existed in
Customary law systems for years albeit in a more primitive form. It is the only contemporary legal
tradition that relies predominantly on ADR. Its largely unwritten nature is also one of its easily
recognizable traits.

4. Legal sources: Rather than being imposed from the high seat of some sovereign authority, it is
living law, flowing out of the deep recesses and well springs of society. As such, its enforceability
is a function of its general acceptance.

5. Ideology: The law is not so much enforced by one determinate authority as it is by every member
of the society. As such, the concept of crime here is fluid. Crimes are generally treated as torts;
retribution is sought by the family affected.19

16
List of National legal Systems, Wikipedia, https://en.m.wikipedia.org/wiki/List of national legal systems, accessed on 4th
January 2016
17
Zweigert K and Kost H, p. 67
18
Bruce Benson, The Enterprise of Law: Justice Without The State, p. 12
19
Ibid
CANON LAW

Canon Law refers to the body of legislation of various Christian churches dealing with matters of
constitution or discipline. Although all religions have regulations, the term applies mainly to the
formal systems of the Roman Catholic, Orthodox, and Anglican communions. It is distinguished from
civil or secular law, but conflict can arise in areas of mutual concern (for example, marriage and
divorce).

Canon law is not 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 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. The 1983 (Latin)
Code of Canon Law promulgated by the authority of Pope John Paul II consists of seven books for a
total of 1752 canons.

It is applied in millions of churches around the world and has been so applied since the 3 rd century
A.D.20

CONCLUSION

As will have been observed from the foregoing, it is extremely rare that only one legal tradition will be
applied in a legal system.21 It is certainly much more probable that aspects of several legal traditions
will be absorbed into one legal system to form a sort of hybrid. The majority of contemporary
countries, including Nigeria, favour this approach. Also, the lines between the various traditions are
increasingly blurry such that a water tight classification may no longer be possible. Indeed, the civil
law tradition is now deemed by some scholars to have fragmented into similar yet distinct systems. 22
The French, German, Scandinavian and Austrian Civil law systems are examples of this, with each of
those systems adapting features from other traditions and evolving distinct characteristics. This shows
that the classification of legal systems into Traditions and the comparison of such is no exact science.
However, despite its lack of exactitude, the classification and comparison of legal systems will
continue to be relevant for years to come, even more so in this age of globalisation.

20
Lynch, John Edward. "Canon Law", Microsoft® Student 2009. Redmond, WA: Microsoft Corporation, 2008.
21
The only example that comes to mind is the Vatican City.
22
See Christian Hertel, An Overview of Legal Systems, Notarius International 1-2/2009, p. 130