What are the variations between the different legal systems of the world?
There are five major jurisdictions in the world: Civil Law, Common Law, Mixed Law, Religious Law, and Customary Law. Each have their own distinct features that impact how the law is practiced to create a functioning community.
Civil law is widely used, codified, not binding, and the base of law academia.
Common law is used in the Anglo-American world, usually not codified, binding, and reliant on legal precedent.
Mixed jurisdictions are those that combine multiple different legal systems.
Religious Law is human law inspired by religious beliefs.
Customary Law it is a law based on the customs of a certain community.
Civil Law
This is the legal system of Europe and South America, and the most widespread jurisdiction in the world, with about 150 countries using its core principles.
Based on Romano-Germanic law it is structured around codes and so is codified (written down). The codes are written as general clauses that allow for future adaptations by governmental legislators, meaning that the law can evolve together with evolving contexts.
To this day it is the core of law in academia - so its philosophy is taught all over the world - and marks the basis of EU law.
Being written down makes it easily accessible to jurists – although they have less power and influence over applying the law - and citizens of a country. Jurists have less power to interpret each specific case because there is already a clear written judgement on how to decide, but, on the other hand, there is immense clarity for the jurist on what to do.
Decisions are not binding in other cases, meaning that if it were decided once that doing A means X, next time doing A might mean Y (which could be due to different contexts and circumstances).
Common Law
This is the legal system used mainly by the USA and the UK. It is law that is based on previous court decisions instead of codes or statutes and so is uncodified. This means that the judges play an enormous role and have a lot of power as they determine and shape the law (compared to a legislative body of government).
It is based on legal precedent, so the law is reliant on decisions made within previous cases. Decisions are binding in other cases, so if in case A X was decided, in another case B the judge will decide on X again. Reports are written of these cases, meaning that lawyers and judges invest a lot of time in investigation and fact finding.
Due to the flexible structures this legal system can respond to changes in society extremely quickly and can adapt. Compared to Civil Law where everything allowed or not allowed is written, in Common Law everything is permitted that is not expressly prohibited, again meaning that there is more freedom.
Mixed Jurisdictions
In this, Civil Law or Common Law coexists with other legal traditions and combines multiple different jurisdictions.
Most countries who use this were colonised previously and so systems of Common or Civil Law combined with the local Religious or Customary law. Customary law as a mix with another legal system is the most common, as historic culture of the country shaped the ‘foreign’ law.
From a philosophical point of view many scholars argue that all jurisdictions are generally mixed because they are influenced by multiple different sources. But in the sense of legal practice, it is specifically a state’s law that combines multiple different systems.
Religious Law
This is law based on a religion or law that has origin in a certain religious text. It regulates a person’s relationship with the state as well as with God, and therefore governs how to behave in a community as well as how to conduct a certain religious faith.
The most common are:
Muslim Law that comes from the belief of Islam. It is used in many Islamic countries.
Halachah from Jewish religion. It is still used within Jewish communities, but not by any state specifically.
Canon Law for Roman Catholics. It is not in practice anymore, except in the Vatican.
Customary Law
This is a completely unwritten law that is based on a long term – historic – application of legal concepts, traditions, social norms. Also referred to as ‘indigenous’ law because it is still applied in many of those communities (but not by the state) with the core of customs.
It is traditionally set by a community as rules of conduct, but in the nowadays world it is usually applied within an overarching legal system. There are morals in a way because it is the certain cultural expectations of how to behave that a certain community has.
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