LEGAL SYSTEMS

OF THE WORLD
Unit 5
MAJOR LEGAL SYSTEMS OF
THE WORLD
ANSWER THE FOLLOWING QUESTIONS:

 1. Look at the map. Which legal systems can you find?

 2. Try to attribute the legal systems to major geographical areas. Which is the most widespread
legal system?
 3. How did the European legal systems spread around the world?
 4. Which legal family does the English legal system belong to?
 5. Which legal family does the Croatian legal system belong to?
LEGAL SYSTEM

 According to H.L.A. Hart, five factors have to coexist to create a legal system. These are:
 Rules that forbid certain conduct and rules that compel certain conduct on pain of
sanctions;
 Rules requiring people to compensate those whom they injure;
 Rules stating what needs to be done in certain ‘mechanical’ areas of law, such as making a
will or a contract;
 A system of courts to determine what the rules are, whether they have been broken and what
the appropriate sanction is;
 A body whose responsibility is to make rules and amend or repeal them when necessary.
NATIONAL LEGAL SYSTEMS
 Each state has its own legal system.
 The structure and characteristics of these systems are highly variable.
 Some legal systems are organized on the basis of a written constitution (e.g. the United
States), some have constitutional systems not resulting from a single written text (e.g. the
United Kingdom), and some do not have an explicit constitutional framework.
 The relative position of statutory law, religious law, customs and case law varies greatly
from one country to another.
LEGAL SYSTEMS
 It is possible to classify national legal systems into several groups, based on the existence of
common characteristics, legal concepts and traditions.
 Civil law systems,
 Anglo-American common law systems,
 collectivistic legal systems,
 Islamic law,
 Talmudic law,
 Chinese law etc.
CLASSIFICATION OF LEGAL SYSTEMS

 There are several basic elements which are used for the purposes of including such systems in
one of the groups into which the world's legal systems are classified.
  The first group of elements: sources of the law - what constitutes law in each legal system
(statutes, customs, judicial decisions, generally accepted legal principles, the opinions of
jurists etc.)
 The various groups of legal systems place different emphasis on these sources: civil law
systems place more emphasis on statutory law
 The Anglo-American legal system gives a broader role to case law, which is considered to be
the source of many of its rules, and has developed complex technical instruments to apply,
interpret and modify such case law.
CLASSIFICATION OF LEGAL
SYSTEMS
 A second group of distinguishing elements consists of the legal concepts and terminology used
by each system.
 This is not a matter of language, but rather of ideas.
 Concepts such as equity, or consideration, have a technical sense under common law which
has no exact equivalent in other legal systems.
 On the other hand, concepts such as juridical act, juridical fact or business association have a
characteristic and central meaning in civil law systems but are non-existent or irrelevant in
other systems.
CLASSIFICATION OF LEGAL
SYSTEMS
 A third group of characteristics used to classify legal systems is based on the historical
development of each national law.
 Historically, civil law systems have been based on Roman law and on the codes enacted in
continental Europe;
 common law systems are based on English common law;
 legal systems from the Muslim tradition are based on Islamic law, etc.
MAJOR WESTERN LEGAL FAMILIES: CIVIL LAW AND
COMMON LAW

 The system of codified law that prevails in continental Europe, South America, and elsewhere
is known as civil law, in contrast to the common law system that applies in England, former
British colonies, the United States, and most of Canada.
 
MAJOR WESTERN LEGAL FAMILIES: CIVIL LAW AND
COMMON LAW

 When we refer to ‘civil law countries’, we are referring primarily to countries that have
inherited the Romano-Germanic traditions.
 Within the civil law tradition, the French legal tradition and the German legal tradition can be
distinguished.
 They are based on Roman law and they share a tradition of devising systematic, authoritative
and comprehensive codifications as their law-making style, working from general concepts
and providing solutions to individual problems.
COMMON LAW SYSTEMS
 Most common law systems do not have codes.  
 Great importance is given to the decisions of judges to be followed in later, similar cases
(precedents).
 The decisions of higher courts are binding on lower courts, and much of the law is left to the
courts to develop.
 When a court consists of several judges, each can express a separate opinion.
 The opinions of individual judges have the sort of prestige that in civil law systems attaches to
opinions of scholars.
 Scholarly writing has some influence, but the opinion of practising lawyers - professional
opinion - has more weight.
 
RECENT TRENDS:
COMMON LAW AND CIVIL
LAW
 In the last 150 years university-trained lawyers have gained influence in the common law.
They have made it more rational and less piecemeal.
 Case law made by judges has become more important in the civil law.
 The civil and common law systems have come closer together, but they still bear the mark of
their origins.
 Civil law is the creation of two elites: a Roman elite of jurists and a European elite of
university-trained lawyers.
 The common law is the creation of an English elite of judges.
 These origins explain the differences of style and method of reasoning that still separate the
two systems.
NEW TRENDS
 

 The division of national legal systems into families or cultural groupings is weakened by the
increasing contemporary influence of international agreements and legal sources.
 For instance, the national laws of member states of the European Union are increasingly
shaped by the need to comply with the requirements set out by EU law.
 In other cases, international agreements with a potentially universal scope determine to a large
extent the contents of national law.
 
ANSWER THE FOLLOWING QUESTIONS:

 What constitutes a legal system?

 What is a source of law?
 What are the major sources of law?
 How would you define case law?
 How can we define a precedent?
 Which type of legal reasoning is deductive: civil law or common law?
 Which type of legal reasoning is inductive: civil law or common law?
 Why have civil law and common law systems come closer together recently?
 What is the impact of international law on national legal systems?
MATCH TWO PARTS OF THE
FOLLOWING SENTENCES:

1.Case law  is a. … an established written law, especially an Act of Parliament

2. A code is a. ... law established by precedents

3. Consolidation is a. … decisions of courts in earlier similar cases

4. Enactment is a. … an official set of laws or regulations

5. Precedents are a. … the action of making a law

6. A statute is a. … the act of bringing together various Acts of Parliament which deal with
one subject into a single Act
SUMMARIZE THE DIFFERENCES
BETWEEN COMMON LAW AND CIVIL LAW
SYSTEMS
Common law Civil law
CIVIL LAW AND COMMON
LAW
 Where civil law proceeds from general principle to general principle, common law proceeds
from case to case.
 Where cases have formed the primary source of the common law, statutes and codified law
have been the civil law counterparts.
 While common lawyers think in terms of the parties and their particular legal relationship,
civil lawyers think in terms of the existing enacted rules, codified or statutory, which may
be applied to a given situation.
 Another consequence of the historical development that is reflected in the mode of legal
thinking is the civil law penchant for planning, systematising and regulating everyday matters
as comprehensively as possible.
COMMON LAW AND CIVIL
LAW
 The classic common law characteristic is to improvise, examining cases for possible
precedents that may or may not be ‘binding’ on the court currently hearing a case, and only
deciding to legislate in any sort of organised and comprehensive fashion if the particular area
of law happens to be confused, obscure or reveals a ‘gap’ in the law.
 Even when ostensibly comprehensive statutes are passed, the preceding case law is often
relevant as a guide to interpretation since the enactment of the statute is generally seen as a
consolidation (and possibly clarification) of existing law.
 The common law statute seeks generally to build or improve on existing case law, whereas the
civil law has traditionally sought to enunciate universally applicable principles, clearly set out
for either the citizen (as in the French Code), or the specialist (as in the German Code)”.
 FILL IN THE MISSING WORDS:
ACADEMIC      AUTHORITY          JUDGMENT            JUDICIAL
        LEGAL        
OPINIONS      PRECEDENTS            REPORTS  
 The nature of ________________in French law could not be further from its English
counterpart. Whereas some of the leading English _____________ decisions contain the
reasoned ________________of judges, distinguishing and applying a long list of
_____________ and stretching through over 100 pages in the law ______________ , French
judgments, even emanating from the Cour de Cassation, the court of final appeal for civil and
criminal cases, rarely amount to two pages. They are in the form of a syllogism: they set out
the facts, the _____________issue and the conclusion, usually without citing any previous
case _________________. Because judgments are so short, they are normally published
accompanied by _____________commentary.
 
DISCUSS THE FOLLOWING
QUESTIONS
 What are the basic differences in the modes of legal thinking between common law and civil
law systems?
 According to you, what are the advantages and disadvantages of the two approaches?
ANSWER THE FOLLOWING QUESTIONS:

 1. Apart from the Western legal traditions, what other legal traditions are you familiar with?
 2. Do you know anything about their characteristics?
CUSTOMARY LAW
 To constitute custom, the practices involved require something more than mere usage or habit.
 They need to have a degree of legality.
 Customary law continues to play an important role, especially in jurisdictions with mixed legal
systems such as those in some African countries.
 
RELIGIOUS LAW
 No legal system can be properly understood without investigating its religious roots.
 For example, the Roman Catholic Church has the longest, continuously operating legal system
in the Western world.
 The rise of secularism has not completely extinguished the impact of religious law.
 Nevertheless, one of the hallmarks of Western legality is the separation between church and
state.
RELIGIOUS LAW
 While a number of prominent religious legal traditions co-exist with state systems of law,
some have actually been adopted as state law.
 The most significant are Talmudic, Islamic and Hindu law.
 All three derive their authority from a divine source: the exposition of religious doctrine as
revealed in the Talmud, Koran and Vedas respectively.
 
TALMUDIC LAW
 Jewish people have maintained their identity for thousands of years, and Talmudic law has
played a very large part in the process.
 It represents one of the oldest legal traditions in the world.
 It is rooted in the word of God as revealed to Moses and found in the first five books of the
Hebrew Bible which constitute the Torah, meaning 'divine wisdom'.
 Talmudic law had a significant impact on Western commercial, civil, and criminal law.
ISLAMIC LAW
 Islamic law is based largely on the teachings of the Koran (literally: 'the Reading').
 The totality of Islamic law is known as the Shari'a, which means 'the way or path to follow'. 
 The unique ground for the validity of Islamic law is that it is the manifested will of the
Almighty: it does not depend on the authority of any earthly law-giver.
 One of the consequences is that Islamic law is immutable, for it is the law revealed by God.
 Thus, society must adapt itself to the law rather than generate laws of its own as a response to
changing circumstances.
 Since Islamic law reflects the will of Allah rather than the will of a human lawmaker, it covers
all areas of life and not simply those which are of interest to the state or society.
HINDUISM
 The classical Hindu law before British colonization rested neither on formal laws laid down by
secular rulers nor yet on court decisions; essentially it rested on the works of scholars.
 It is linked to the divine revelation of the Vedas, which contained comprehensive and
systematic descriptions of the customary Hindu law.
 Hinduism postulates the notion of Kharma: goodness and evil on earth determine the nature of
one's next existence.
 Hindu law, especially in relation to family law and succession, applies to around 900 million
individuals, mostly living in India.
CHINESE LAW
 Traditional Chinese society, in common with other Confucian civilizations, adopted the
concept of 'li', or appropriate behaviour, which is understood as a set of culturally and socially
valued norms that provide guidance to proper behaviour that will ultimately lead to a
harmonious society. 
 As Confucius rejects the general use of formal laws to achieve social order, the willing
participation by citizens to search for commonly accepted, cooperative solutions is vital to his
theory.
CHINESE LAW
 In contrast to Confucius’ li-based theory, legalism advocates the use of codified laws and harsh
punishment to achieve social order.
 This is due to the legalists’ belief that all human beings are born evil and self-interested.
 Therefore, if left unrestrained, people would engage in selfish behaviour which will lead to
social unrest.
 To force people to behave morally, the only way is to publicly promulgate clearly written laws
and impose harsh punishments
ANSWER THE FOLLOWING QUESTIONS:

 What is needed in order to constitute custom as a source of law?

 What are the most important religious legal traditions today?
 What is the longest, continuously operating legal system in the Western world?
 What is one of the hallmarks of Western legality regarding law and religion?
 Which religious legal traditions have been adopted as state law?
 Why is Islamic law considered to be immutable?
 What is the customary Hindu law based on?
 What are the two theories of Chinese law?
COMPLETE THE TABLE PROVIDING BASIC
INFORMATION ABOUT EACH OF THE LEGAL
TRADITIONS

CUSTOMARY LAW  
 
CANON LAW  
 
TALMUDIC LAW  
 
ISLAMIC LAW  
 
HINDUISM  
 
CHINESE LAW  
 
RESEARCH
 Explore some of the legal traditions of the world and prepare a presentation on a chosen
topic.