MAJOR LEGAL SYSTEMS OF
THE WORLD
LEGAL METHODS (Jurisprudence)
BA LLB/ BBA LLB Sem I
MANISHA BAND
INTRODUCTION
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.
Division into legal systems depending on what is given primacy in
each.
MAJOR LEGAL SYSTEMS OF THE
WORLD
RELIGIOUS LAW SYSTEMS
CUSTOMARY LAW SYSTEM
COMMON LAW SYSTEMS
CIVIL LEGAL SYSTEMS
MIXED OR HYBRID LEGAL SYSTEMS
Source: JuriGlobe- World Legal systems
RELIGIOUS LEGAL SYSTEMS
Religious system or document being used as a legal source – Canon
law, Islamic law.
Most common example: Shari’a law (Eg: Iran, Saudi Arabia,
Afghanistan)
Other countries that apply Shari’a Law do so in combination with either
common law (Pakistan) or civil law (Morocco).
Example of Jirga (Pakistan) - Literally, “traditional assembly of leaders”
that make decisions by consensus and according to the teachings
of Islam.
Parallel justice system operating alongside common law system; Finds
justification in a law governing tribal areas of Pakistan (Federally
Administered Tribal Areas)
CUSTOMARY LEGAL SYSTEM
Laws based on local customs that have found wide
acceptance.
Doesn’t exist in isolation anymore.
Exist in combination with common law, civil law or
religious law in few parts of Africa and Asia.
COMMON LAW
Civil- common and civil- criminal – different meanings.
Not all common/ civil law systems are identical to each other;
France and Germany – both civil systems but still differences.
Main characteristics of a pure common law system:
Since it originated in England, spread to British colonies; what about
USA?
o Primarily judge-made law : law that is laid down by the Courts.
o Generally uncodified; does not always have a written Constitution.
o Developed on a case-by-case basis; stare decisis and precedent.
o Scope for dissenting judgment.
COMMON LAW
2 choices when similar case : accept and follow precedent – ensures
stability; or distinguish and overrule – allows adjustment to new
situations.
Builds laws from the ground upwards - from the "grassroots" - case-by-
case, rather than imposing them from the top.
Jury system: to represent local interests of ordinary person.
Adversarial system : passive role of judges and active role of lawyers.
Judge may give a judgment based on equity : ubi jus ibi remedium -
based on ‘fairness’.
Key participants – judge, lawyers, Police, jury and victim (although a
limited role)
CIVIL LEGAL SYSTEM
Originated in Roman law and spread to continental Europe; consequently to
European colonies – Eg – South America
Primarily relies on statutes codified by the legislature; case law is secondary
source.
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;
Legal codes that specify all matters capable of being brought before a court,
the applicable procedure, and the appropriate punishment for each offence.
A code is not a list of special rules for particular situations; it is, rather,
a body of general principles carefully arranged and closely integrated.
Not much reliance on Court judgments: courts only apply the pre-
existing law.
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;
A prominent example of a civil-law is the Napoleonic Code (1804), named
after French emperor Napoleon. The code comprises three components:
the law of persons
property law
commercial law
Top-down approach; just apply laws codified by legislature.
Investigating judge: pre-trial stage - includes interviewing the accused, the
victim, and witnesses. Once the investigating judge finishes the
investigation, he or she can refer the case to a trial judge or panel of trial
judges for the formal trial.
Active role of judges and passive role of lawyers: Inquisitorial.
No jury (as not a lot of scope for interpretation); belief that a code can
address all circumstances that might need legal regulation.
Greater importance to scholars’ writings and commentaries on a code
– judge merely applies the law.
In criminal cases, victim more than a mere witness. In many civil law
systems, victims may bring civil claims, e.g., for monetary damages, in
the context of a criminal prosecution. Some systems also allow victim
to become a co-plaintiff.
No scope for Dissenting judgment.
SCOPE OF INTERPRETATION ALLOWED - A
COMPARISON
Eg. Doctrine of basic structure:
In common law regime, possible for the judiciary to
create new doctrines and them to be applicable later
In civil law, the doctrine has to be mentioned in the code
and the interpretation can be done by the judge; how it
is interpreted by the judge in one case can help in
another case, but the creation itself isn’t possible
COMMON LAW VS CIVIL LAW
FEATURE COMMON LAW CIVIL LAW
Major source Judgments Statutes and codes
Reliance on Strong Weak
precedent
Role of Judge:
During trial Passive Active
In law making Active Passive
Appointment of From lawyers Judges are trained specially
judges to apply the law.
Scope for Very wide Limited
interpretation
Flexibility in Allowed; can decide on fairness not allowed; complete
remedy grounds, Courts of equity’ reliance on codes
MIXED OR HYBRID LEGAL SYSTEMS
Features of one or more legal systems – constituents of the
mixture depend on what influences have been there historically.
India has a common law system combined with separate
personal law codes that apply to Muslims, Christians, and
Hindus. Pakistan’s legal system combines common law and
Islamic law. Nepal’s legal system combines Hindu legal concepts
and common law. The Philippines has a mixed legal system of
civil, common, Islamic and customary law. Sri Lanka’s legal
system combines civil law, common law and customary law.
INDIA AS A HYBRID SYSTEM
Manifestations of :
From Common law:
Doctrine of stare decisis,
Precedent
Judicial review
Adversarial system
Innovation of concepts like ‘Doctrine of Basic Structure’.
From Civil law:
reliance on statutes and codes codified by the legislature,
provision of overruling court decisions through amendment or new law.
Religious law:
uncodified personal laws governing marriage, divorce etc
