The contemporary national legal systems are generally based on one of four basic
systems:
civil law
Civil law may refer to:
* Civil law (common law), the part of law that concerns private citizens and legal persons
* Civil law (legal system), or continental law, a legal system originating in continental Europe and based on Roman law
** Private la ...
,
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
,
statutory law,
religious law
Religious law includes ethical and moral codes taught by religious traditions. Different religious systems hold sacred law in a greater or lesser degree of importance to their belief systems, with some being explicitly antinomian whereas other ...
or combinations of these. However, the legal system of each country is shaped by its unique history and so incorporates individual variations. The science that studies law at the level of legal systems is called
comparative law.
Both ''civil'' (also known as ''Roman'') and ''common'' law systems can be considered the most widespread in the world: civil law because it is the most widespread by landmass and by population overall, and common law because it is employed by the greatest number of people compared to any single civil law system.
Civil law
The source of law that is recognized as authoritative is
codifications in a constitution or
statute passed by
legislature
A legislature is an deliberative assembly, assembly with the authority to make laws for a Polity, political entity such as a Sovereign state, country or city. They are often contrasted with the Executive (government), executive and Judiciary, ...
, to amend a code.
While the concept of codification dates back to the
Code of Hammurabi in
Babylon ca. 1790 BC, civil law systems derive from the
Roman Empire
The Roman Empire ( la, Imperium Romanum ; grc-gre, Βασιλεία τῶν Ῥωμαίων, Basileía tôn Rhōmaíōn) was the post- Republican period of ancient Rome. As a polity, it included large territorial holdings around the Medite ...
and, more particularly, the ''
Corpus Juris Civilis'' issued by the Emperor
Justinian
Justinian I (; la, Iustinianus, ; grc-gre, Ἰουστινιανός ; 48214 November 565), also known as Justinian the Great, was the Byzantine emperor from 527 to 565.
His reign is marked by the ambitious but only partly realized '' renova ...
ca. AD 529. This was an extensive reform of the law in the
Byzantine Empire
The Byzantine Empire, also referred to as the Eastern Roman Empire or Byzantium, was the continuation of the Roman Empire primarily in its eastern provinces during Late Antiquity and the Middle Ages, when its capital city was Constantin ...
, bringing it together into codified documents. Civil law was also partly influenced by
religious law
Religious law includes ethical and moral codes taught by religious traditions. Different religious systems hold sacred law in a greater or lesser degree of importance to their belief systems, with some being explicitly antinomian whereas other ...
s such as
Canon law and
Islamic law.
Civil law today, in theory, is interpreted rather than developed or made by judges. Only
legislative enactments (rather than legal
precedents, as in common law) are considered legally binding.
Scholars of
comparative law and economists promoting the
legal origins theory usually subdivide civil law into distinct groups:
*
French civil law: in France, the
Benelux
The Benelux Union ( nl, Benelux Unie; french: Union Benelux; lb, Benelux-Unioun), also known as simply Benelux, is a Political union, politico-economic union and formal international intergovernmental cooperation of three neighboring states in ...
countries, Italy, Romania, Spain and former colonies of those countries;
*
German civil law
German(s) may refer to:
* Germany (of or related to)
**Germania (historical use)
* Germans, citizens of Germany, people of German ancestry, or native speakers of the German language
** For citizens of Germany, see also German nationality law
** ...
: in Germany, Austria, Russia, Switzerland, Estonia, Latvia, Bosnia and Herzegovina, Croatia, Kosovo*, North Macedonia, Montenegro, Slovenia, Serbia, Greece,
Portugal
Portugal, officially the Portuguese Republic, In recognized minority languages of Portugal:
:* mwl, República Pertuesa is a country located on the Iberian Peninsula, in Southwestern Europe, and whose territory also includes the Macaronesian ...
and
its former colonies, Turkey, and East Asian countries including Japan, South Korea, and Taiwan (Republic of China);
*
Scandinavian civil law: in Denmark, Norway, and Sweden. As historically integrated into the Scandinavian cultural sphere, Finland and Iceland also inherited the system.
However, some of these legal systems are often and more correctly said to be of hybrid nature:
*Napoleonic to Germanistic influence (
Italian civil law)
The
Italian civil code of 1942 replaced the original one of 1865, introducing germanistic elements due to the geopolitical alliances of the time. The Italian approach has been imitated by other countries including
Portugal
Portugal, officially the Portuguese Republic, In recognized minority languages of Portugal:
:* mwl, República Pertuesa is a country located on the Iberian Peninsula, in Southwestern Europe, and whose territory also includes the Macaronesian ...
(1966), the
Netherlands
)
, anthem = ( en, "William of Nassau")
, image_map =
, map_caption =
, subdivision_type = Sovereign state
, subdivision_name = Kingdom of the Netherlands
, established_title = Before independence
, established_date = Spanish Netherl ...
(1992),
Lithuania (2000),
Brazil
Brazil ( pt, Brasil; ), officially the Federative Republic of Brazil (Portuguese: ), is the largest country in both South America and Latin America. At and with over 217 million people, Brazil is the world's fifth-largest country by area ...
(2002) and
Argentina
Argentina (), officially the Argentine Republic ( es, link=no, República Argentina), is a country in the southern half of South America. Argentina covers an area of , making it the second-largest country in South America after Brazil, t ...
(2014). Most of them have innovations introduced by the Italian legislation, including the unification of the
civil
Civil may refer to:
*Civic virtue, or civility
*Civil action, or lawsuit
* Civil affairs
*Civil and political rights
*Civil disobedience
*Civil engineering
*Civil (journalism), a platform for independent journalism
*Civilian, someone not a membe ...
and
commercial codes.
*Germanistic to Napoleonic influence (
Swiss civil law)
The
Swiss civil code is considered mainly influenced by the German civil code and partly influenced by the French civil code. The civil code of the
Republic of Turkey
Turkey ( tr, Türkiye ), officially the Republic of Türkiye ( tr, Türkiye Cumhuriyeti, links=no ), is a transcontinental country located mainly on the Anatolian Peninsula in Western Asia, with a small portion on the Balkan Peninsula i ...
is a slightly modified version of the Swiss code, adopted in 1926 during
Mustafa Kemal Atatürk's presidency as part of the government's progressive reforms and secularization.
A comprehensive list of countries that base their legal system on a
codified civil law follows:
Common law
Common law and
equity are systems of law whose sources are the decisions in cases by judges. In addition, every system will have a legislature that passes new laws and statutes. The relationships between statutes and judicial decisions can be complex. In some jurisdictions, such statutes may overrule judicial decisions or codify the topic covered by several contradictory or ambiguous decisions. In some jurisdictions, judicial decisions may decide whether the jurisdiction's constitution allowed a particular statute or statutory provision to be made or what meaning is contained within the statutory provisions. The common law developed in England, influenced by
Anglo-Saxon
The Anglo-Saxons were a Cultural identity, cultural group who inhabited England in the Early Middle Ages. They traced their origins to settlers who came to Britain from mainland Europe in the 5th century. However, the ethnogenesis of the Anglo- ...
law and to a much lesser extent by the
Norman conquest of England, which introduced legal concepts from
Norman law Norman law (, , ) refers to the customary law of the Duchy of Normandy which developed between the 10th and 13th centuries and which survives today in the legal systems of Jersey and the other Channel Islands. It grew out of a mingling of Frankish c ...
, which, in turn, had its origins in
Salic law. Common law was later inherited by the
Commonwealth of Nations
The Commonwealth of Nations, simply referred to as the Commonwealth, is a political association of 56 member states, the vast majority of which are former territories of the British Empire. The chief institutions of the organisation are the ...
, and almost every former colony of the
British Empire
The British Empire was composed of the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom and its predecessor states. It began with the overseas possessions and trading post ...
has adopted it (
Malta
Malta ( , , ), officially the Republic of Malta ( mt, Repubblika ta' Malta ), is an island country in the Mediterranean Sea. It consists of an archipelago, between Italy and Libya, and is often considered a part of Southern Europe. It lies ...
being an exception). The doctrine of ''stare decisis'', also known as ''case law'' or ''
precedent by courts'', is the major difference to codified civil law systems.
Common law is practiced in
Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tota ...
(excluding
Quebec
Quebec ( ; )According to the Government of Canada, Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is ...
),
Australia,
New Zealand
New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 List of islands of New Zealand, smaller islands. It is the ...
, most of the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
(
England, Wales, and
Northern Ireland
Northern Ireland ( ga, Tuaisceart Éireann ; sco, label=Ulster-Scots, Norlin Airlann) is a part of the United Kingdom, situated in the north-east of the island of Ireland, that is variously described as a country, province or region. North ...
),
South Africa
South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. It is bounded to the south by of coastline that stretch along the South Atlantic and Indian Oceans; to the north by the neighbouring count ...
,
Ireland
Ireland ( ; ga, Éire ; Ulster Scots dialect, Ulster-Scots: ) is an island in the Atlantic Ocean, North Atlantic Ocean, in Northwestern Europe, north-western Europe. It is separated from Great Britain to its east by the North Channel (Grea ...
,
India
India, officially the Republic of India ( Hindi: ), is a country in South Asia. It is the seventh-largest country by area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the ...
(excluding
Goa),
Pakistan
Pakistan ( ur, ), officially the Islamic Republic of Pakistan ( ur, , label=none), is a country in South Asia. It is the world's List of countries and dependencies by population, fifth-most populous country, with a population of almost 24 ...
,
Hong Kong
Hong Kong ( (US) or (UK); , ), officially the Hong Kong Special Administrative Region of the People's Republic of China (abbr. Hong Kong SAR or HKSAR), is a city and special administrative region of China on the eastern Pearl River Delta i ...
, the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., federal district, five ma ...
(on state and territorial levels excluding
Louisiana
Louisiana , group=pronunciation (French: ''La Louisiane'') is a U.S. state, state in the Deep South and South Central United States, South Central regions of the United States. It is the List of U.S. states and territories by area, 20th-smal ...
and
Puerto Rico
Puerto Rico (; abbreviated PR; tnq, Boriken, ''Borinquen''), officially the Commonwealth of Puerto Rico ( es, link=yes, Estado Libre Asociado de Puerto Rico, lit=Free Associated State of Puerto Rico), is a Caribbean island and Unincorporated ...
),
Bangladesh
Bangladesh (}, ), officially the People's Republic of Bangladesh, is a country in South Asia. It is the List of countries and dependencies by population, eighth-most populous country in the world, with a population exceeding 165 million pe ...
, and many other places. Several others have adapted the common law system into a mixed system; For example, Nigeria operates largely on a common law system in the southern states and at the federal level, but also incorporates religious law in the northern states.
In the
European Union
The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been ...
, the
Court of Justice takes an approach mixing civil law (based on the treaties) with an attachment to the importance of case law. One of the most fundamental documents to shape common law is the English
Magna Carta
(Medieval Latin for "Great Charter of Freedoms"), commonly called (also ''Magna Charta''; "Great Charter"), is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, Berkshire, Windsor, on 15 June 1215. ...
, which placed limits on the power of the English Kings. It served as a kind of medieval bill of rights for the aristocracy and the judiciary who developed the law.
Religious law
Religious law refers to the notion of a religious system or document being used as a legal source, though the methodology used varies. For example, the use of Judaism and ''
halakha
''Halakha'' (; he, הֲלָכָה, ), also transliterated as ''halacha'', ''halakhah'', and ''halocho'' ( ), is the collective body of Jewish religious laws which is derived from the written and Oral Torah. Halakha is based on biblical comm ...
'' for public law has a static and unalterable quality, precluding amendment through legislative acts of government or development through judicial precedent; Christian
canon law is more similar to
civil law
Civil law may refer to:
* Civil law (common law), the part of law that concerns private citizens and legal persons
* Civil law (legal system), or continental law, a legal system originating in continental Europe and based on Roman law
** Private la ...
in its use of
codes; and Islamic
sharia law (and ''
fiqh
''Fiqh'' (; ar, فقه ) is Islamic jurisprudence. Muhammad-> Companions-> Followers-> Fiqh.
The commands and prohibitions chosen by God were revealed through the agency of the Prophet in both the Quran and the Sunnah (words, deeds, and ...
'' jurisprudence) is based on legal
precedent and reasoning by
analogy (''
qiyas
In Islamic jurisprudence, qiyas ( ar, قياس , " analogy") is the process of deductive analogy in which the teachings of the hadith are compared and contrasted with those of the Quran, in order to apply a known injunction ('' nass'') to a ...
''), and is thus considered similar to
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
.
The main kinds of religious law are
sharia in Islam, ''
halakha
''Halakha'' (; he, הֲלָכָה, ), also transliterated as ''halacha'', ''halakhah'', and ''halocho'' ( ), is the collective body of Jewish religious laws which is derived from the written and Oral Torah. Halakha is based on biblical comm ...
'' in Judaism, and
canon law in some Christian groups. In some cases these are intended purely as individual moral guidance, whereas in other cases they are intended and may be used as the basis for a country's legal system; the latter was particularly common during the
Middle Ages
In the history of Europe, the Middle Ages or medieval period lasted approximately from the late 5th to the late 15th centuries, similar to the post-classical period of global history. It began with the fall of the Western Roman Empire ...
.
''Halakha'' is followed by
Orthodox and
Conservative Jews in both ecclesiastical and civil relations. No country is fully governed by ''halakha'', but two Jewish people may decide, because of personal belief, to have a dispute heard by a Jewish court, and be bound by its rulings.
Canon law is the internal
ecclesiastical law, or operational policy, governing the
Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
(both the
Latin Church
, native_name_lang = la
, image = San Giovanni in Laterano - Rome.jpg
, imagewidth = 250px
, alt = Façade of the Archbasilica of St. John in Lateran
, caption = Archbasilica of Saint Jo ...
and the
Eastern Catholic Churches
The Eastern Catholic Churches or Oriental Catholic Churches, also called the Eastern-Rite Catholic Churches, Eastern Rite Catholicism, or simply the Eastern Churches, are 23 Eastern Christian autonomous ('' sui iuris'') particular churches of ...
), the
Eastern Orthodox
Eastern Orthodoxy, also known as Eastern Orthodox Christianity, is one of the three main branches of Chalcedonian Christianity, alongside Catholicism and Protestantism.
Like the Pentarchy of the first millennium, the mainstream (or " canoni ...
and
Oriental Orthodox
The Oriental Orthodox Churches are Eastern Christian churches adhering to Miaphysite Christology, with approximately 60 million members worldwide. The Oriental Orthodox Churches are part of the Nicene Christian tradition, and represent ...
churches, and the individual national churches within the
Anglican Communion
The Anglican Communion is the third largest Christian communion after the Roman Catholic and Eastern Orthodox churches. Founded in 1867 in London, the communion has more than 85 million members within the Church of England and oth ...
.
Canon law of the Catholic Church () is the
system of
laws and
legal principles
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling ...
made and enforced by the
hierarchical authorities of the Catholic Church to regulate its external organisation and government and to order and direct the activities of Catholics toward the mission of the church. The canon law of the Catholic Church has all the ordinary elements of a mature legal system: laws,
courts
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accor ...
,
lawyers, judges.
[ Edward N. Peters]
"A Catechist's Introduction to Canon Law"
CanonLaw.info, accessed June-11-2013 The canon law of the Latin Church was the first modern Western
legal system, and is the oldest continuously functioning legal system in the
West. while the distinctive traditions of
Eastern Catholic canon law govern the 23 Eastern Catholic
particular church
In metaphysics, particulars or individuals are usually contrasted with universals. Universals concern features that can be exemplified by various different particulars. Particulars are often seen as concrete, spatiotemporal entities as opposed to ...
es ''
sui iuris.''
The Islamic legal system, consisting of
sharia (Islamic law) and ''
fiqh
''Fiqh'' (; ar, فقه ) is Islamic jurisprudence. Muhammad-> Companions-> Followers-> Fiqh.
The commands and prohibitions chosen by God were revealed through the agency of the Prophet in both the Quran and the Sunnah (words, deeds, and ...
'' (Islamic jurisprudence), is the most widely used
religious law
Religious law includes ethical and moral codes taught by religious traditions. Different religious systems hold sacred law in a greater or lesser degree of importance to their belief systems, with some being explicitly antinomian whereas other ...
system, and one of the three most common legal systems in the world alongside common law and civil law.
It is based on both
divine law, derived from the
hadith of the Quran and Sunnah, and the rulings of ''
ulema'' (jurists), who use the methods of ''
ijma
''Ijmāʿ'' ( ar, إجماع , " consensus") is an Arabic term referring to the consensus or agreement of the Islamic community on a point of Islamic law. Sunni Muslims regard ''ijmā as one of the secondary sources of Sharia law, after the Qur ...
'' (consensus), ''
qiyas
In Islamic jurisprudence, qiyas ( ar, قياس , " analogy") is the process of deductive analogy in which the teachings of the hadith are compared and contrasted with those of the Quran, in order to apply a known injunction ('' nass'') to a ...
'' (analogical deduction), ''
ijtihad'' (research), and ''
urf'' (common practice) to derive
fatwā (legal opinions). An ''ulema'' was required to qualify for an ''
ijazah'' (
legal doctorate
A doctorate (from Latin ''docere'', "to teach"), doctor's degree (from Latin ''doctor'', "teacher"), or doctoral degree is an academic degree awarded by universities and some other educational institutions, derived from the ancient formalism '' ...
) at a ''
madrasa
Madrasa (, also , ; Arabic: مدرسة , pl. , ) is the Arabic word for any type of educational institution, secular or religious (of any religion), whether for elementary instruction or higher learning. The word is variously transliterated '' ...
'' (
law school or
college
A college ( Latin: ''collegium'') is an educational institution or a constituent part of one. A college may be a degree-awarding tertiary educational institution, a part of a collegiate or federal university, an institution offering ...
) before they could issue ''fatwā''.
During the
Islamic Golden Age
The Islamic Golden Age was a period of cultural, economic, and scientific flourishing in the history of Islam, traditionally dated from the 8th century to the 14th century. This period is traditionally understood to have begun during the reign ...
, classical Islamic law may have had an
influence on the development of common law
and several civil law institutions.
Sharia law governs a number of Islamic countries, including Saudi Arabia and Iran, though most countries use Sharia law only as a supplement to national law. It can relate to all aspects of civil law, including property rights, contracts, and public law.
Pluralistic systems
Civil law and canon law
Canon law is not divine law, properly speaking, because it is not found in revelation. Instead, it is seen as human law inspired by the word of God and applying the demands of that revelation to the actual situation of the church.
Canon law regulates the internal ordering of the
Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
, the
Eastern Orthodox Church
The Eastern Orthodox Church, also called the Orthodox Church, is the second-largest Christian church, with approximately 220 million baptized members. It operates as a communion of autocephalous churches, each governed by its bishops vi ...
and the
Anglican Communion
The Anglican Communion is the third largest Christian communion after the Roman Catholic and Eastern Orthodox churches. Founded in 1867 in London, the communion has more than 85 million members within the Church of England and oth ...
. Canon law is amended and adopted by the legislative authority of the church, such as
councils of bishops, individual bishops for their respective sees, the
Pope
The pope ( la, papa, from el, πάππας, translit=pappas, 'father'), also known as supreme pontiff ( or ), Roman pontiff () or sovereign pontiff, is the bishop of Rome (or historically the patriarch of Rome), head of the worldwide Cathol ...
for the entire Catholic Church, and the British Parliament for the
Church of England
The Church of England (C of E) is the established Christian church in England and the mother church of the international Anglican Communion. It traces its history to the Christian church recorded as existing in the Roman province of Britai ...
.
Civil law and common law
Civil law and sharia law
Common law and sharia law
By geography
Despite the usefulness of different classifications, every legal system has its own individual identity. Below are groups of legal systems, categorised by their
geographic location.
See also
*
Anarchist law
*
Comparative law
*
English common law
*
International customary law
*
Sharia
*
Qanun (law)
*
Legal pluralism
**''
Journal of Legal Pluralism''
*
Rule of law
*
Rule According to Higher Law
*
Socialist law
*
Soviet law
*
Tribal sovereignty
*
Western law
*
Comparative law wiki
*
Legal education
References
Sources
; Books
* Moustaira Elina N., ''Comparative Law: University Courses (in Greek)'', Ant. N. Sakkoulas Publishers, Athens, 2004, .
* Moustaira Elina N., ''Milestones in the Course of Comparative Law: Thesis and Antithesis (in Greek)'', Ant. N. Sakkoulas Publishers, Athens, 2003, .
* Palmer, Vernon Valentine, Mohamed Y. Mattar, & Anna Kopper, eds. ''Mixed Legal Systems, East and West''. Farnham–Burlington, VT: Ashgate, 2014.
External links
World Legal Systems Website of the Faculty of Law of the University of Ottawa
Factbook list of legal systems
{{Authority control
Comparative law
List
A ''list'' is any set of items in a row. List or lists may also refer to:
People
* List (surname)
Organizations
* List College, an undergraduate division of the Jewish Theological Seminary of America
* SC Germania List, German rugby uni ...
*