Legal Systems of the World

Module III

Nidhi Hriday Buch 1

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Meaning of Legal System
 A system for interpreting and enforcing
Laws.
 It is a systematic arrangement of norms
organized in primary and secondary layers
for the purpose of governance.

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Classification of legal Systems

Common Law

Civil Law

Islamic Law
(Religious/Theocratic in nature)

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Common Law System
 This system developed from a set of
traditional laws first brought together in
England around the 12th Century.
 The name derives from the fact that it was
one set of laws "common" to the whole
kingdom, rather than different sets of laws
used by individual communities or tribes.
 The system of law that emerged in England
beginning in the Middle Ages and is based on
case law and precedent rather than codified
law.
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Essential Features
 Developed through usage rather than
being imposed by codified legislation as
with the civil code system.
 Developed based on the outcomes of
individual court cases.
 Each court case provided a basis for
judging the next case of a similar nature.

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Core Principles
 The rights of the individual exist alongside
those of the state;
 It is adversarial;
 It has a presumption of innocence;
 It develops case law through judgments and
precedents;
 Case law co-exists with statute law and - in
most cases - a constitution;
 Crimes are punished and civil wrongs are
rectified by compensation.

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Features
 There is not always a written constitution
or codified laws;
 Judicial decisions are binding
 Extensive freedom of contract
 Generally, everything is permitted that is
not expressly prohibited by law.
 This system if less prescriptive than a civil
law system.

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 Countries following a common law
system are typically those that were
former British colonies or protectorates,
including the United States.

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Conclusion
 IT IS RESPONSIVE TO THE PRESSURES OF DAILY LIFE
AND DOES NOT HAVE A RIGID FRAMEWORK
 IT IS MORE PRAGMATIC & ACCOMMODATIVE
 IT IS INDUCTIVE IN NATURE: GRADUALLY
ARRIVING AT A RULE FROM CONSIDERATION OF
NUMEROUS PARTICULAR INSTANCES
 EVOLVED A CLASSIC SYSTEM OF PRECEDENTS &
CASE LAWS
 COURTS PLAY A VITAL ROLE IN CREATING LAW
 IT IS ALWAYS OPEN TO LEGAL, JUDICIAL,
ADMINISTRATIVE , COMMON MAN’S SCRUTINY

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Civil law
 Civil law – the system of law that
emerged in continental Europe beginning
in the Middle Ages and is based on
codified law drawn from national
legislation and custom as well as ancient
Roman law.

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Civil Law Systems
 This is the most common type of legal system in the world,
either in its pure form or as a basis upon which other
elements such as religious law are added.
 The civil code or civil law system is also called by other
names such as Roman law, Continental law or Napoleonic law.
 All are systems where laws are legislated by parliament or
some other form of representative government and codified
(i.e. brought together). They are distinguished from common
law mainly because they come from parliaments, not from
court cases.
 Indeed, in civil code systems the courts do not usually have
as much freedom to interpret laws. In the original
Napoleonic courts judges were specifically banned from
interpreting statute laws.

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 The term civil law derives from the Latin jus civile,
the law applicable to all Roman cives or citizens.
 Its origins and model are to be found in the
monumental compilation of Roman law
commissioned by the Emperor Justinian in the
sixth century CE.
 While this compilation was lost to the West
within decades of its creation, it was rediscovered
and made the basis for legal instruction in
eleventh-century Italy and in the sixteenth
century came to be known as Corpus juris civilis.

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 Succeeding generations of legal scholars
throughout Europe adapted the principles of
ancient Roman law in the Corpus juris civilis
to contemporary needs.
 Medieval scholars of Catholic church law, or
canon law, were also influenced by Roman
law scholarship as they compiled existing
religious legal sources into their own
comprehensive system of law and
governance for the Church, an institution
central to medieval culture, politics, and
higher learning.

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 By the late Middle Ages, these two laws, civil and
canon, were taught at most universities and
formed the basis of a shared body of legal
thought common to most of Europe.
 The birth and evolution of the medieval civil law
tradition based on Roman law was thus integral
to European legal development. It offered a store
of legal principles and rules invested with the
authority of ancient Rome and centuries of
distinguished jurists, and it held out the possibility
of a comprehensive legal code providing
substantive and procedural law for all situations

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Core Principles
 The underlying principle of civil code systems is that
the laws applied to citizens are made by citizens
through their political representatives. Judges are
there to administer laws, not make them.
 Laws are codified
 Civil code systems are mainly inquisitorial rather
than adversarial.
 Judges in civil code trials are usually more active in
questioning witnesses, challenging evidence and even -
in some cases - directing investigations. This is quite
different to common law trials where the judge is
supposed to play a role of a moderator.

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Presumption of Innocence
 Although the presumption of innocence is
not usually stated explicitly in civil code laws,
many countries have subsequently built it
into their systems by adopting external or
international obligations.
 For example, most European countries have
ratified the European Convention on Human
Rights which guarantees the right to a fair
trial and the presumption of innocence. Thus
these principles have become part of their
national laws.
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Trial by Jury
 Trial by jury is less common in
inquisitorial systems, especially when
judges have a strong role in hunting down
the "truth' in a case rather than
arbitrating between two adversarial
parties.
 Juries are, however, used in some civil
code countries such as France, Norway,
Spain and Brazil, albeit usually for a limited
range of offences, mainly criminal.

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 Countries following a civil law system are
typically those that were former French,
Dutch, German, Spanish or Portuguese
colonies or protectorates, including much
of Central and South America. Also, most
of the Central and Eastern European and
East Asian countries follow a civil law
structure.
 The civil law system is a codified system
of law. It takes its origins from Roman law.

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Features of a civil law system
 There is generally a written constitution based on
specific codes (e.g., civil code, codes covering
corporate law, administrative law, tax law and
constitutional law) enshrining basic rights and
duties; administrative law is however usually less
codified and administrative court judges tend to
behave more like common law judges;
 Only legislative enactments are considered
binding for all.
 In some civil law systems, e.g., Germany, writings
of legal scholars have significant influence on the
courts;

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 Courts specific to the underlying codes –
there are therefore usually separate
constitutional court, administrative court
and civil court systems that opine on
consistency of legislation and administrative
acts with and interpret that specific code;
 Less freedom of contract - many provisions
are implied into the contract by law and
parties cannot contract out of certain
provisions.
 A civil law system is generally more
prescriptive than a common civil law system.
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 Conclusion
 ARTIFICIAL CREATION BY LAW MAKERS AND
ACADEMICANS
 MORE EMPHASIS ON AUTHORITY THAN ON
THEORIES, PRINCIPLES ETC.
 NOT AN OPEN SYSTEM-LESS SCOPE FOR
REVIEW
 GROWTH THROUGH LEGISLATION RATHER
THAN LITIGATION

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Major areas of Differences between
Civil law and Common law legal
systems
 Common Law  Civil Law
 Adversarial System  Inquisitorial System
 Written Constitution  Written Constitution is
may not be there always always there
 Judicial decision is
binding  Not binding
 Influence of writings of
legal scholars is limited  Great influence
 Existence and growth of
 Existence and growth of
equity equity
 Legal reasoning :
 Legal reasoning :
inductive deductive

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Religious System
 Here we are not talking of laws governing
the religious practices of believers but of a
country's legal system being based on
religious laws which apply to people as
citizens in both their private and public lives.
 Although throughout history many countries
have had legal systems based wholly or
partly on religious laws and teachings, today
by far the most common are those aligned
to Islam.
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ISLAMIC LEGAL SYSTEM
 Islamic law is one of the three major legal
systems of the world after common law and
civil law systems. It is applicable, at least in
part, in more than fifty-five Muslim countries
and in a number of non-Muslim countries.
 Islamic law originated in the Middle East in
the late sixth century and developed mainly
in that region.
 Muslim countries in the Middle East still have
significant influence in the development and
application of Islamic law throughout the
world.
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 ISLAMIC LEGAL SYSTEM
 Gives practical expression to the
religious faith and aspirations of the
Muslims.
 Total and unconditional submission to the
will of Allah
 Only the law which is associated with
religion alone reflects the will of Allah
 The Islamic law is a comprehensive code
of behavior.
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Islamic law
 Sharia, an Arabic word meaning "the right path,"
refers to traditional Islamic law. The Sharia comes
from the Qur’an, the sacred book of Islam, which
Muslims consider the actual word of God.
 Islamic law (Sharia) is based on the Qur’an and
Sunnah, supplemented by interpretations over the
centuries by Muslim scholars and jurists. It
provides rules on how practising Muslim should
live their lives.
 Like common law and civil code law, Islamic law is
still evolving and there are still disagreements
about exactly what makes up Sharia and its
scholarly interpretations (Fiqh).

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Shari’ah is the body of Islamic Law. It is
the legal framework within which the
public and private aspects of life are
regulated for those living in a legal
system based on Islamic Shari’ah. It
deals with every aspects of day-to-day
life, including diet, politics, economics,
hygiene, banking, business contracts,
family, and social issues.
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Islamic law addresses, both civil and
criminal justice as well as regulates
individual conduct both personal and
moral. The body of law based on the
Qur’an and Sunnah distinguished by
Islam and Muslims in their
application, as Shari’ah law.

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ISLAMIC LEGAL SYSTEM
 Islamic law shares some similarities with
common law, principally the fact that it
has evolved through application, with
current judgments based on precedents
and the analysis of previous cases of a
similar nature.
 There are, however, some fundamental
differences in areas such as individual
rights and equality before the law,
especially in the treatment of women.

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The Distinctive Features of
Islamic Shari’ah:

 It is designed by God: Allah.

 It governs state and citizens both
 The ruler, in this system, is an
implementer.
 It governs every aspect of human life.
There is no division of secular and
religious concept.

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Sources of Islamic Law
The primary sources of Islamic law
are the Qur’an and Sunnah.
There are two supplementary sources:
Ijmaa’: the consensus of Islamic
jurists on certain issues, and
Qiyas: Drawing analogy from the essence of
divine principles and preceding
rulings.

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 In situations where no concrete rules
exist under the sources, law scholars use
Qiyas: various forms of reasoning,
including by analogy. The consensus of
the community or people, public interest,
and others are also accepted as
secondary sources where the first four
primary sources allow.

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Islamic Legal System in 21st Century
 Spectrum of Muslim legal systems in the 21st century.
 Different groups among Muslims hold different
perspective regarding the fundamental Sharia law.
 Modern or secular Sharia law being followed in secular
Muslim countries like Mali, Kazakhstan and Turkey. Role
of Sharia is limited to personal and family matters.
Religious interference in the matters of state, law and
politics is prohibited.
 Countries having mixed kinds of laws are Pakistan,
Indonesia, Afghanistan, Egypt, Nigeria, Sudan, Morocco
and Malaysia. These Islamic countries possess legal
systems of their own, however these are greatly under
the influence of Sharia, however the ultimate authority
remains their constitutions and the rule of law.

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Islamic Legal System in 21st Century
 Hardcore Muslim countries having
traditional perspective on Sharia law. These
countries include Saudi Arabia and Gulf
countries that have got its constitutions or
legislatures and where the state head have
got some authority to change laws, because
they are derived from Sharia law as it is
interpreted by their religious scholars.
Important point to note here is that Iran
shares some of these characteristics,
however it also have got parliament that
legislates in a manner consistent with Sharia.

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