Legal systems

So far we’ve explored some of the history and development of the English Common
law. Now let’s put the English common law into a different kind of context. Bear in
mind, that this common law system in fact relates to both England and Wales, not just
England. In this course we use 'English common law' as a shorter way of saying 'the
common law of England and Wales'.

What kind of legal system is the English common law, compared to other types of legal
system in the world? Looking globally, there are many different legal systems, which
have grown up in and been influenced by different cultures and attitudes to law. Broadly
speaking, different types of legal systems can be classified into two families: the
common law system and the civil law system.

Common law systems

The English legal system is a common law system, and we’ve explored how this
common law system developed historically. The common law tradition of England was
transported around the world and there are now common law systems in Australia,
USA, Canada, New Zealand and many other countries.

Some of the features of common law systems are:

In common law systems, legal principles are to be found in the decisions of judges in
individual cases.
Common law systems operate on the basis of ‘binding precedent’ so that judges in a
particular case must follow the decisions of judges in earlier similar cases.
There is not always a written constitution or codified laws.
Judicial decisions are binding and decisions of the highest court can only be overturned
by the same court or through legislation.
Everything is permitted that is not expressly prohibited by law.
Civil law systems

Civil law systems have their origins in Roman law, and later developed in continental
Europe and around the world. There are civil law systems in France, Germany, Japan,
Brazil and many other countries.

Some of the features of civil law systems are:

A key distinguishing feature of civil law is that it is a ‘codified’ system.

Countries with civil law systems have comprehensive legal codes that specify all
matters capable of being brought before a court, the applicable procedure and the
appropriate punishment for each offence.
The judge’s role is to establish the facts of the case and to apply the provisions of the
applicable code.
Judges’ decisions are consequently less crucial in shaping civil law than the decisions of
the legislators and legal scholars who draft and interpret the codes. There is little scope
for judge-made law.
They have written constitutions based on specific codes
Other types of legal system

Some countries have what is called a ‘mixed system’, that include some elements of the
common law as well as some elements of civil law – for example parts of Africa and
India.

It is also worth noting that there are other types of legal system, such as Islamic, or
Shariah, law which is applicable in various forms as part of state law in different
countries of the Middle East, Asia and Africa. You may also encounter other forms of
religious law, such as Canon or ecclesiastical law made by certain Christian churches,
and Halakha law in Judaism.

Legal systems of the world

This map shows countries with common law systems (in red) and those with civil law
systems (in blue).