How Do Legal Systems Differ Around The World?

August 13, 2013 | by | 0 Comments

Introduction to and Definitions of Legal Systems

There are hundreds of legal systems throughout the world today. Fortunately common histories have led to countries sharing legal systems, so not every nation has a uniquely different legal system.

Legal systems are hybrid creatures; in some instances they have been a slowly evolving tradition, absorbing principles and adapting legal strategies on an ad hoc basis.

In other instances a new legal system might accompany catastrophic national and political change, such as a revolution or conquest.

 

There are hundreds of different legal systems around the world

There are hundreds of different legal systems around the world

Accidents of history, geography and politics have also influenced the type of legal system a country has. However, since civilisations began, legal systems have been necessary in order to provide the rules of government and law making, to solve disputes, to police behaviour and to address universal issues such as equality, fairness, justice and distribution of power.

In its simplest definition a legal system might be deemed “the set of laws of a particular country and the way that they are used. However, in reality legal systems are more complex regimens and would encompass five main features:

  1. A constitution, written or oral.
  2. Primary legislation, statutes and laws, authorised by the constitutionally authorised body, often a parliament, but known by different names such as a Senate.
  3. Subsidiary legislation (bylaws) enacted by persons or bodies authorised by the primary legislation to do so.
  4. Customs applied by the courts on the basis of traditional practices.
  5. A Civil, Common, Roman or other code of laws as the source of such principles and practices. (Other codes of laws will usually be religious ones.)

It is the last of these features that does most to shape the differing nature of a country’s legal system, so these must be examined in more detail. Below, Vannin Capital discuss the different types of legal systems.

Legal Systems based on Civil Law

Legal systems based on Civil Law procedures are the most prevalent in the world today. They can trace their roots back to the Roman Justinian code of laws of the 6th century A.D. This was the main law curriculum in the universities of mainland, medieval Europe, hence its alternative name of Continental European Law. The essential characteristic of a Civil Law system is that is based on a clear set of codified documents, in this case the Roman Justinian documents plus some from the medieval Canon Law. However, the seismic nature of the French Revolution, with its inception of republican and secular vales, meant an overhaul of the legal system was needed. In 1804 the new Napoleonic Code of Civil law was published and it is this which is today the basis of many countries’ legal system. Wherever the French had colonies it was adopted, so has shaped the legal systems of Vietnam, and parts of the Caribbean. Napoleonic dominance of early 19th century Continental Europe ensured this Civil Law was established in Spain, Italy, Romania and the Benelux countries. Spanish historical dominance of South America ensured that the legal systems of Mexico, Argentina, Chile, Paraguay and most other smaller neighbours, are based on this common Civil Code of 1804 France. Belgian influence exported it to the African Congo.

However, an alternative Civil Law system evolved in central and Eastern Europe that was not under Napoleonic control. Germany also re-codified the old Roman system in 1811 and again in 1900, as the Allegemanes Burgerliches Gesetzbuch. This German Civil Law system became the foundation for the legal systems of many countries, including Austria, Hungary, Switzerland, Portugal, Greece, Turkey, Estonia, Latvia and Bulgaria. Further afield Japan, Korea, China and Russia borrowed from it when establishing their own legal systems. In most cases it was translated into the vernacular language and politically tweaked where necessary.

The legal systems of the Scandinavian countries are also based on written Civil Laws, but these have tended to omit the Roman influence, instead incorporating the principles of old Norse and Teutonic traditions. Denmark’s Civil Code dates from 1683, as does Norway’s but this was updated in 1867; both Finland’s and Sweden’s Civil Code was written in 1734.

Having established that most countries in the world rely upon a Civil Law system, however derived, a few common traits can be identified. In Civil systems the major source of law is legislative statutes and the role of the judiciary is minimal, passive and technical. Judges are very much in the role of investigators and fact finders, and there is little reliance on precedent or the adversarial trial system. Working from the statutory texts follows a pattern, and it is perhaps not surprising that most legal systems follow this model, because of its clarity of system and structure.

So what about those countries whose legal system is not based on a written Civil Law?

Legal Systems based on Common Law

Common Law systems can be seen as the converse of Civil. Essentially uncodified, they are based on a scattered set of statutes and writs, and depend heavily on precedent. The judiciary has a far greater role, for it is their judgements that are the precedents. Such systems are far more adversarial and court trials feature strongly. Case law is a decisive feature.

The forerunner of a Common Law system is the English one that emerged after the Norman conquest; based on an amalgam of some Roman principles, old Anglo-Saxon laws, new Norman French ones and royal writs and orders post-1066. An example is Magna Carta of 1215, which established an individual’s right to trial by jury. The importance of the language of law is reflected here. In the Middle Ages laws were written in Latin, spoken in Norman-French but became English after the 18th century. Essentially English Common Law is the basis of legal systems throughout the world where English is the official language. Historically these are the countries colonised under the rule of the British Empire. Even post-independence they have retained their Common Law systems. The U.S. legal system, those of India, Hong Kong, Bermuda, large chunks of the Caribbean and Africa, New Zealand and Australia follow an essentially Common Law system. Obviously they have evolved and adapted, but all legal systems need to be fluid and flexible.

Legal Systems based on Religious Laws

Not all legal systems are secular. In its purest form a country following a legal system based on religious laws, would see such laws as emanating from a deity, legislating through prophets, and as such they would be eternal and immutable laws. Islamic countries vary in their dependence on purely religious laws, often having a hybrid or dual system of secular and religious laws. The latter might govern rules of marriage, divorce and family relationships, the former commercial and public issues. An interesting example is Pakistan. In 1935 its Constitution was based on the Government Act of India, incorporating an English Common Law system, which was also reflected in its post-independence Constitution of 1947. However, this is supplemented by Sharia Law.

Different Legal Systems: the Future?

History and politics have largely determined the nature of any country’s legal system. No legal system is set in stone but will adapt itself to changing circumstances and trends. Obviously advances in technology have encouraged a much more global world. Trends towards international legal systems are exemplified by those of the European Union and the United Nations. The growth of international dispute resolution reflects the new challenges: in which type of legal system will they be resolved?

 

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