Chapter 2
Legal Systems of the World

The contemporary legal systems of the world are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history and so incorporates individual variations.

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 Common law because it is employed by the greatest number of people.

Common Law

Common law and equity are systems of law whose sources are the decisions in cases by judges. Alongside, 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. Statutes were allowed to be made by the government. Common law developed in England, influenced by Anglo-Saxon law and to a much lesser extent by the Norman conquest of England, which introduced legal concepts from Norman law, which, in turn, had its origins in Salic law. Common law was later inherited by the Commonwealth of Nations, and almost every former colony of the British Empire has adopted it (Malta 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 currently in practice in Ireland, most of the United Kingdom (England and Wales and Northern Ireland), Australia, New Zealand, Bangladesh, India (excluding Goa), Pakistan, South Africa, Canada (excluding Quebec), Hong Kong, the United States (on a state level excluding Louisiana), and many other places. In addition to these countries, several others have adapted the common law system into a mixed system. For example, Nigeria operates largely on a common law system, but incorporates religious law.

In the European Union, 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, 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.

Civil Law

The central source of law that is recognized as authoritative is codifications in a constitution or statute passed by legislature, 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 and, more particularly, the Corpus Juris Civilis issued by the Emperor Justinian ca. AD 529. This was an extensive reform of the law in the Byzantine Empire, bringing it together into codified documents. Civil law was also partly influenced by religious laws 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 four distinct groups:

• French civil law: in France, the Benelux countries, Italy, Romania, Spain and former colonies of those countries;

• German civil law: in Germany, Austria, Russia, Switzerland, Estonia, Latvia, Bosnia and Herzegovina, Croatia, Kosovo, Macedonia, Montenegro, Slovenia, Serbia, Greece, Portugal and its former colonies, Turkey, Japan;

• Scandinavian civil law: in Denmark, Norway and Sweden. As historically integrated in the Scandinavian cultural sphere, Finland and Iceland also inherited the system.

• Chinese law: a mixture of civil law and socialist law in use in the People's Republic of China.

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 the Netherlands (1992), Argentina (2014), Brazil (2002) and Portugal (1966). Most of them have innovations introduced by the Italian legislation, including the unification of the civil 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 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:

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 Jewish and Halakha 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 in its use of codes; and Islamic Sharia law (and Fiqh jurisprudence) is based on legal precedent and reasoning by analogy ( Qiyas ), and is thus considered similar to common law.

The main kinds of religious law are Sharia in Islam, Halakha 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.

The 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.

The Islamic legal system of Sharia (Islamic law) and Fiqh (Islamic jurisprudence) is the most widely used religious law, 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 Qur'an and Sunnah, and the rulings of Ulema (jurists), who used the methods of Ijma (consensus), Qiyas (analogical deduction), Ijtihad (research) and Urf (common practice) to derive Fatwā (legal opinions). An Ulema was required to qualify for an Ijazah (legal doctorate) at a Madrasa (law school/college) before they could issue Fatwā . During the Islamic Golden Age, 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 or 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 Eastern Orthodox Church and the Anglican Communion. Canon law is amended and adapted by the legislative authority of the church, such as councils of bishops, single bishops for their respective sees, the Pope for the entire Catholic Church, and the British Parliament for the Church of England.

Civil Law and Common Law

Civil Law and Sharia Law

Common Law and Sharia Law

Hybrid Law

Exercises

I. Collocations are word combinations, or words that occur next to or near each other, often in a particular sequence. When becoming familiar with legal English, students may not always know which word combinations are permitted and which are not. Take, for example, the noun phrase common law . We know that in English prepositions can precede noun phrases, but what specific prepositions can precede common law ?

Consider this sentence:

common law, the possessor of land owes a duty of ordinary care to his invitees, who are persons whom he invites onto his land for some purpose beneficial to him.

You may not know the answer and therefore may only be able to make some guesses, such as in, under, or at . Look at these example containing instances of common law . What preposition precedes common law in these cases?

1. There is no physician-patient privilege at common law, but a majority of states have enacted statutes.

2. Article Ι, Section 16 of the Alaska Constitution provides in relevant part: “In civil cases where the amount in controversy exceeds two hundred fifty dollars, the right of trial by a jury of twelve is preserved to the same extent as it existed at common law.”

Based on what you know so far, what preposition would you use to fill in the blanks in these three excerpts?

1. Civil fraud, as with suits______common law, involves lower evidentiary standards — e.g., a preponderance of the evidence, not guilt beyond a reasonable doubt.

2.______the common law, an insurance agent whose principal is the insurance company owes on duty to advise a potential insured about any coverage.

3.______the common law, “one who suffers from deficient mental capacity is not immune from tort liability solely for that reason...”

Is the preposition at the only preposition that can occur with common law? Does it make a difference if common law is preceded by the, as in Excerpts 2 and 3?

Since the answers are not likely to be found in your dictionary, you would normally have to conduct more inquiries. If you have access to a corpus of legal documents via Westlaw or Lexis Nexis, you can find the answers to these questions on your own by choosing a database (such as state cases) and then typing in key terms or word combinations, such as “common law”. Hint: Avoid beginning your entry with a high-frequency word like the . You will be able to find examples of prepositions that occur with common law . Alternatively, you can go to scholar. google. com and type in some possibilities, such as “at the common law”(law), to see if they exist.

II. Please fill in the blank with the appropriate article (“a”, “an”, or “the”) or leave it blank to indicate that no article is necessary.

“Dennis has only pled that______police responded to______call for assistance.______mere response to______ call for assistance or aid does not create______special relationship between______police and______person in need of______aid..., In Yates,______Yates family called______police to break up______gang fight behind their home.______police arrived, but instead of stopping______fight, they remained in their car. After______car departed,______shot was fired at______rear of______Yates' house which struck and killed their daughter. This court refused to find______special relationship where______police ‘did not assure______Yates family that they would protect them from______dangers caused by______gang fight.______focus of Melendez is on______individual and any danger unique to______individual from which______police specifically promise protection.'…

In Rankin,______plaintiff was stabbed on______local Philadelphia train.______plaintiff alleged that______police officer witnessed______stabbing and failed to prevent it. He further alleged that______officer escorted him from______train, told him to sit down on______bench, and told him he would be ‘alright.'______plaintiff subsequently passed out and was left on______without______medical attention for some four hours...

This court concluded that______special relationship existed because______three elements of______Thomas test were met. We inferred that______third element was met by______allegation that______police escorted______plaintiff from______train, seated him, and reassured him. In______case now before us, there are simply no facts pled from which we can make such______inference. Without______third element of______voluntary assumption by______officer in this case to protect______decedent, there can be no special relationship, no duty, and hence no liability.”

Excerpt from City of Philadelphia v. Estate of Dennis, 636 A. 2d 240 (Pa. Commw. Ct. 1993). s6sImkgZTYpngG41w4hpBA3AFq3EHb8UgxLQrCL3Zmn4OMaTO6ZoKDXcNqjQdBpS