According to Zimmermann there are “as many legal systems as there are national states”. Every country has its own unique legal system. However, we can allocate among them three main legal systems. These are: Civil Law, Common Law and Islamic Law. Civil and Common Laws are the most influential legal systems in the world, especially in its Western part. All three of these legal systems have existed and developed for many centuries. Further will follow the description of the historically appearance of each legal system separately.
Civil legal system is considered to be the oldest and the most widespread one. It also known as Continental, Roman or Romano-Germanic law. In general, Roman law consists of a combination of three main subtraditions such as Roman Civil Law, Canon Law and Commercial Law. The development of Roman Law cover more than a thousand year period, starting from the publication of the law of the XII Tables in Rome (450 B.C.) and the code of Emperor Justinian I Corpus Juris Civilic , which was created in period from 529 – 534 A.D and later developed by medieval legal scholars. Countries with Civil legal system: France, Germany, Japan, Russia and Uzbekistan.
The Common law evolved in England since 11th century after being conquered by the Normans in 1066 A.D.. Afterwards William I the Conqueror created central government and began to standardize the law by combining the best of Anglo-Saxon law with Norman Law which led to a creation of English Common Law. “William’s enduring legacy was the creation of highly centralized legal system”.
(Kritzer, H, M, 2002). The case law originally appeared when the King understood, that many cases, which he had to solve were similar and needed standardization. During the 14th century legal decisions on the common law started providing precedents for the judges to follow. In 1769 Sir William Blackstone wrote Commentaries on the Laws of England, which became the basics of the most common law statutes. These are countries with common legal system: England, United States of America, Australia, Canada, Pakistan, and India.
The Islamic Law is called Sharia. The primary sources of Islamic Law are Qur’an and Sunnah. Sharia covers all aspects of every day life of Muslims, including such things as: economics, family and social issues.
The legal systems in the World are divided into three main groups: Common, Civil and Islamic legal system, as it was discussed earlier. According to Zweigert, K. and Kötz, H. there are five main differences this two legal systems can be compared: historical background, legal investigation, legal institutions, the sources of law and last one is its ideology.
Civil and Common legal systems have both similarities and differences. The main difference between these two legal systems is that common law in England was based on customs, the court existed a long time before there were any written laws. In contrast, the Civil Law developed from ancient Roman Law of Justinian I
The second difference is the role of sources of law. At present time there are such sources of law as codes, legislation, customs, judicial decisions (case law), equity and doctrinal writing. Each legal system has several sources from those which were mentioned above. For instance, as De Cruz (2007) points out “the main sources of law in Civil law countries are the codes, enacted law, doctrinal writing, custom and decided cases.”
Civil legal system is codified statutory system, where the main principles and rules are stated in codes. This means that codes and statutes are valued higher and case law is considered just as a secondary source of law. On the other hand the Common law system is uncodified, “governed by case law and statutes play only an auxiliary role to precedents established by courts”(Kritzer, H M, 2002). Equity and case law are accepted sources of law in Common law countries. They do not exist in Civil law jurisdiction.
Equity is understood not only as justice but is also considered as a set of legal principles, which are applied in Common legal system. Equity deals with “situations by applying notions of good sense and fairness”. (Elliott, C & Quinn, F, 1996).The law is dominantly created by judge and often without checking the legislation, only by drawing analogy the previous similar cases. This moment shows the difference of the legislators in civil law and in common law. In the civil law, judges should apply the law, which was created by the legislator, on the basis of separation of powers. On the other hand, in common law the judge is given the power to create the law.
Another difference between civil and common law system is the force of precedents. In civil law system, the court decides the particular cases according to the legislation and legal norms. But in the common law the courts are supposed not only to solve the cases, but also give an example of how similar cases have to be solved in the future. This means, that decisions, which are made by higher level courts in a specific areas are binding the lower ones to follow them. This makes the court in the common law the basis of legislation.
Court procedures are also differentiating in both civil and common legal systems. We all know that at the court two parties cooperate by presenting their evidence to each other. Civil legal system has an inquisitorial procedure. In inquisitorial procedure the judge is the active person, who also takes more investigative role. Common law countries use the accusatorial system, which is also known as the adversary procedure.”
The common law principle which places the responsibility for collecting and presenting evidence on the party who seeks to introduce that evidence.” (Woodley, M, 2005). In accusatorial procedure judge is a passive person in comparison with the inquisitorial procedure. Moreover, the last word in court procedure (Civil legal system) has the defendant, whereas in Common law the last world has the prosecutor.
Next difference would be legal institutions. It can be seen on the following examples. Trust is a branch of law which exist in Common law countries, significantly developed in England. It regulates relationship between trust and trustee. Trust is the person who delegates their ownership, whereas trustee is the person who owns trusts’ proprieties due to many reasons (e. g. underage)
The principle of presumption of innocence works differently in Common and Civil law in criminal cases. In Common law it means that a person isinnocent until his gilt is proven by the prosecutor and by the facts he presents. On the other hand in civil legal system, it suggests that a person is found to be guilty until he proved that he is innocent.
Convergence theory is a system, when one particular country has a mixed legal system. Mixed jurisdiction in recent time, became a subject of huge debates and discussions in European Union. This is happening because, EU has united many countries with different legal systems under a single legislation. So now EU is becoming an area of convergence, where two major legal systems, civil legal system of the continental Europe and common legal system of England, are getting mixed with each other.
But this kind of situation with the mixed jurisdictions did not occur only in European Union. Louisiana and Quebec are examples of mixed jurisdiction systems.
Before being a part of USA, Louisiana was a French colony since 1731 till its cession to Spain in 1763. In this period of time Louisiana had a French legal system. But after its cession, French law was replaced by Spanish Law. The Spanish law included “Nueva Recopilación de Castilla (1567) and the Recopilación de Leyes de los Reinos de las Indias (a rearrangement of major legal texts up to 1680), and, in default of a specific rule in a later enactment, the Siete Partidas (a compilation of laws, based on the Justinian compilation and the doctrine of the Glossators, made under King Alfonso X in 1265 and formally enacted under King Alfonso XI in 1348)” (Tetley,W., 2000).
On 20 December of 1803 Louisiana became part of United States of America. USA had a common law legal system. The mixture of common and civil law systems lead to a misinterpretation of laws, because all other codes were written in different languages. That is why, Edward Livingston in 1808 created a “Louisiana civil code”, which was approved by the major advocates of common law. In 1825 the Louisiana civil code was modified by adding missing force and was organized similarly with French Civil Code. The third civil code was evolved in 1870. The complete edition of all three codes was published in 1938.Starting from 1976 Louisiana’s State University is now responsible forthe Louisiana civil code.
Another striking example of the mixed of jurisdictions, would be Quebec. For a long time before being ceded by the Great Britain, Quebec was the part of France, and called “le Canada”. This means that in Quebec was under French Civil Legal system. After cession with Great Britain, the legal systems got mixed, and this lead to a confusion of the applicable law. The French population boycotted the new English law. To make some clarifications were made by creating a Quebec Act 1774, which combined both civil and common legal systems. In 1791 The Constitutional act divided Quebec into Upper Canada, with common law system and Lower Canada with civil law. Nowadays Canada still has a mixed jurisdiction
The mixed jurisdiction is, in my opinion, a myth, but many countries are trying to reach the convergence between these two main legal systems. As I stated before, some countries already have mixed jurisdiction, but this mixture often leads to some misunderstandings and confusions to the legal authorities of the country. Convergence theory is a myth, but as long as developed countries will try to mix both of these legal systems, it can become reality.