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42 Major Legal Systems of the World

Matti Joutsen

LEGAL SYSTEMS AND LEGAL TRADITIONS

A basic distinction is made in comparative law between legal systems and legal traditions.
A legal system consists of the set of legal institutions, procedures, and rules that govern
the interpretation and enforcement of law. A legal tradition is a set of attitudes, values, and
norms in society about the nature, role, and operation of law, and about how the law should
be made. The criteria that are generally used when determining the legal system to which
a legal tradition belongs are its sources of law, the historical background and development
of the system, its characteristic mode of thought, and its distinctive institutions, such as the
roles of judges and lawyers.
The main legal traditions are the common law legal tradition, the civil law legal tradition,
the Islamic legal tradition, and the indigenous legal tradition. One major legal tradition that
is not dealt with in this chapter is the socialist legal tradition, which is based on the civil
law legal tradition but is politicized law that recognizes the dominance of the Communist
Party. It was at one time widespread, primarily in Eastern Europe and the USSR. Today,
its influence can still be seen, for example, in aspects of law in China, Cuba, Vietnam, and
North Korea.

THE COMMON LAW LEGAL TRADITION

The common law legal tradition emerged in England and is generally associated with judge-
made law (as opposed to statutory law) and adversarial procedure (as opposed to inquisi-
torial procedure). The roots of common law can be traced back to the early Middle Ages
(ca. 500) when England was a feudal society with a relatively weak king. The “law” that was
followed at that time was essentially local folk custom. Disputes were settled in assemblies of
freemen in shire courts and hundred courts. William the Conqueror (King William I, 1066–
1087) added a layer of royal courts. These royal courts based their decisions on custom, and
often depended on juries to inform them about local custom. Since the members of the jury
were part of the same small, tightly knit community, they were expected to know the people
coming before them on trial, and thus have prior knowledge of the case.
A combination of feudal practices, custom, and equity produced a legal tradition that
emphasized the grassroots nature of law (and of criminal justice), and the role of the judge in

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ascertaining custom (the law). Once a judge had established what the custom was in respect
of an individual case, this decision served as a guide for other judges in subsequent cases that
had similar features; the case became a precedent.
Common law also evolved in an adversarial direction. The most active participants in the
trial came to be the lawyers for the two parties (in criminal trials, the defense counsel and the
prosecutor), each presenting their client’s position. The role of the judge was largely passive,
listening to the arguments of the two sides before deciding the case.
By the 1600s, when England began to establish colonies, common law had emerged as a
distinct legal tradition. As a result, this legal tradition spread to English colonies around the
world, including, for example, to what is now the USA, Canada, Australia, and India. Today,
roughly one-fifth of the countries in the world can be classified as belonging to the common
law legal tradition.
As common law spread, it evolved in different directions. Developments in England were
no longer necessarily followed in the colonies, especially after these colonies became inde-
pendent. In some colonies, the common law legal tradition mixed with other legal traditions.
For example, in the colonies in North America, common law blended here and there with a
Puritan emphasis on Church law, as well as with an emerging “law merchant” (international
trade law). In some North American colonies, Spanish and French law also had an impact.
The influence of French law is most clearly visible in North America in the state of Louisiana
and the province of Quebec. Although common law originally emerged through decisions
made by independent judges, modern common law is based to a large extent on laws passed
by a legislature (statutory law).

THE CIVIL LAW LEGAL TRADITION

The civil law legal tradition (also known as Roman law or Continental law) is often described
as being based on laws passed by the legislature (statutory law). (Note: The civil law legal
tradition is often referred to simply as “civil law.” This short-hand term is avoided here, since
the same term is widely used to refer to private law – the law of contracts, the law of property,
etc. – as opposed to criminal law.)
The roots of the civil law legal tradition in Continental Europe lie in a mixture of Roman
law, codification, and Church law. Ancient Rome was highly centralized, and the laws passed
by the Roman Senate applied to Roman citizens throughout the Empire – essentially, much
of Europe, Northern Africa, and parts of the Middle East.
Roman law evolved from roughly 450 bce to 500 ce. With time, it became increasingly
difficult even for lawyers to understand how different pieces of legislation enacted at different
times fit together. This led to efforts to codify law, to bring all legislation on a certain topic
together into one statute. In one important respect, codified law is the opposite of judge-
made law. Instead of looking at individual cases, the codifiers try to establish basic principles,
and then synthesize a comprehensive set of regulations on this basis.
The fall of the Roman Empire in 476 ce left room for another centralized power struc-
ture, the Catholic Church, which established a network of courts. These courts did not limit
themselves to spiritual or religious matters, but instead took on a wide remit. At a time when
nations on the continent of Europe were slowly emerging in the aftermath of the fall of Rome,
Roman law had largely fallen out of use. As had been the case in England during the Middle

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256 Matti Joutsen

Ages, the law that was applied was traditional folk custom. This law was adequate in a static
rural society but had difficulties in responding to economic and political developments.
During the 1100s, Roman law was “rediscovered” by jurists and re-introduced into legal prac-
tice. This development was supported by the Church and the merchant class. More import-
antly, the re-introduction of Roman law was supported by the many kings and princes who
saw Roman law as a way of centralizing power into their hands.
Over the next centuries, a mixture of Roman law and Church law came to dominate
legal practice throughout Continental Europe. Nonetheless, it was mixed in with local folk
custom, and the kings and princes in the different countries added their own statutes. Thus,
for example, the law in France developed quite differently from that in the German states.
Beginning with the so-called Napoleonic Code in France in 1804, many countries with a civil
law legal tradition codified their law. Each new code replaced previous legislation.
Despite the importance of statutory law, jurisprudence also in the civil law legal tradition
countries began to refer extensively to court cases. The civil law legal tradition is associated
with the inquisitorial process, in which the judge is active in fact finding, for example, in
collecting evidence, and in questioning the parties or the witnesses during the trial. As
happened with common law, the period of colonization led to the export of the civil law legal
tradition around the world. Today, roughly one-half of all countries apply the civil law legal
tradition. In addition to Continental Europe, it is applied in almost all of Central and South
America, in most of Africa, and in much of Asia.

THE ISLAMIC LEGAL TRADITION

While the common law and civil law legal traditions are essentially secular, the Islamic
legal tradition is decidedly religious. Its basis is the law as revealed by Allah to His Prophet,
Muhammad (ca. 570–642), written down in the Qur’an. The Qur’an, together with the Sunna
(the collected statements and deeds of Muhammad), comprise the Shari’a, the “path to follow.”
Muhammad lived in the Arabian Peninsula, which was then populated by many small
tribes worshiping a number of gods. The divine revelations to Muhammad served to restore
monotheism and unite the feuding tribes.
Islam, and with it Islamic law, spread very rapidly. Within the space of only a century its
influence extended beyond the Arabian Peninsula to northwest India and Central Asia in the
East, and to North Africa and the Iberian Peninsula in the West. Subsequently, it spread in
particular to many countries in Southeast Asia.
The Shari’a is more than law. To Muslims, the Shari’a is a guide to what should be followed
in all facets of life. There is thus no distinction between a legal system and other controls on
behavior. Since the Qur’an is divinely revealed, it is also immutable. It cannot be amended by
the legislator or set aside by the judge.
In order to apply Islam to changing circumstances, two additional sources of Islamic law
have evolved: analogical reasoning (qiyas) and consensus among jurists (ijma). Because qiyas
and ijma vary among the different denominations that have emerged in Islam (the most
important of which are Sunni and Shi’a), the way in which Islamic law is applied in practice
today varies considerably. Modern Islam also incorporates statutory law, allowing for even
more variety from one Islamic country to the next.

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Major Legal Systems of the World 257

During the colonial period, the Islamic legal tradition was eroded by the introduction
of the common law or civil law legal traditions. Following independence, Islamic law has
resurged in many countries. Today, a distinction can be made between countries where Islam
provides the basis for the entire legal system (e.g., Saudi Arabia, Afghanistan, Iran, Iraq,
Libya, and Sudan) and countries where Islam is one major source for the legal system, along
with elements from, for example, the civil or common law legal traditions (e.g., Indonesia,
Malaysia, and Pakistan).

THE INDIGENOUS LEGAL TRADITION

Traditional society has no written law, nor even a sense of law as something apart from
proper standards of behavior. When a problem arises in the community, the members gather
together to discuss how to resolve it. Using at times ritualized procedures, all those who
believe that they can contribute to the discussion are allowed to do so. Village elders might
refer to how similar problems have been dealt with before, which helps to guide the discus-
sion and suggests a resolution. The emphasis is on participation and on restoring harmony
within the society.
Despite the spread of the common law, civil law and Islamic legal traditions, as well as
other more developed types of law, this indigenous legal tradition remains in wide use in
many areas, alongside the “official” legal system. This is the case in many African countries as
well as, for example, Indonesia, Papua New Guinea, and the Philippines. The tradition is also
resurging among indigenous people in, for example, the USA, Canada, and New Zealand.
Furthermore, many of the elements of the indigenous legal tradition have been used in the
development of mediation and restorative justice programs in “mainstream” legal traditions.

MIXTURES OF LEGAL TRADITIONS

The development of the different legal traditions did not take place in a vacuum. Each was
influenced by other traditions. For example, the common law legal tradition has adopted
some inquisitorial aspects from the civil law legal tradition, and the civil law legal tradition
has correspondingly been influenced by common law adversarial procedure.
In some cases, several legal traditions operate alongside one another in the same country.
For example, in both Nigeria and Pakistan, common law, Islamic law, and indigenous law
are applied in separate court systems. As a result, there are few “pure” examples of a legal
tradition. According to one calculation, almost one-half of the legal systems in the world
are hybrids that combine different legal traditions. Historical developments and structural
factors help to explain why a country follows a certain legal tradition, but the differences
between the traditions are not hard and fast. Table 42.1 provides an overview of the four main
legal traditions. The differences are not so much of kind, as of degree.
Moreover, there is a lot of variation within legal traditions. Common law countries vary
in the extent to which they use codification, jury trial, and allow judicial activism. Different
civil law legal tradition countries have developed different institutions. Examples of such
institutions include the investigating magistrate in French-based systems and the role of the
victim as a subsidiary prosecutor in some German-based systems.

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258 Matti Joutsen

Table 42.1. Overview of the main legal traditions

Sources of Law Centralization Discretion Features Examples

Common law Case law and Low. Extensive. Jury; rules of evidence; USA, Canada, United
legislation. passive role of judge; Kingdom.
active role of lawyer.
Civil law Legislation High. Some. Active role of judge. France, Germany,
(synthesis; broad Mexico.
principles).
Islamic law Shari’a; analogical Low. Religious Law is divinely inspired; Saudi Arabia, Iraq,
reasoning; interpretation. immutability of the Afghanistan.
consensus among Shari’a.
jurists.
Indigenous law Local custom; Very low. Extensive; Extensive informal Tribal courts in the
primarily wide use of control; USA, aboriginal
oral sources. mediation. search for communities in
community harmony. Australia, Maori
communities in New
Zealand.

SUMMARY
Studying the legal traditions helps us to understand why they differ in their use of various
sources of law, and why they have developed certain specific features. However, to a sur-
prising degree, there are few major differences in how the legal traditions operate in prac-
tice. This can be seen in the operation of the criminal justice system. The way in which each
and every society responds to dangerous or harmful conduct such as stealing, fighting, and
vandalism is broadly the same. A central authority (usually a democratically elected legis-
lature, although it can also be, for example, a king, a religious leader, or a council of elders)
defines what behavior is prohibited, how to determine whether or not someone has been
guilty of such behavior, and what the punishment may be. The broad outlines of the crim-
inal justice process are much the same in every country, with one or more law enforcement
agencies charged with the investigation of alleged offenses; a prosecutorial service charged
with presentation of the cases in court; an adjudicatory body charged with hearing the case
and deciding the outcome; and a separate organization charged with the enforcement of the
sentence. The main practical differences between individual criminal justice systems – and
legal traditions – appear to arise not so much from the legal system, but from the political
system, and in particular its approach to the question of control.

FURTHER READING

Dammer, H. R. & Albanese, J. S. (2014). Comparative criminal justice systems. Fifth edition. Belmont,
CA: Wadsworth.
Pakes, F. (2017). Comparative criminal justice. Third Edition. London and New York: Routledge.
Reichel, P. (2018). Comparative criminal justice systems: A topical approach. New York: Pearson.
Terrill, R. J. (2013). World criminal justice systems: A comparative review. Boston, New York, San Diego,
and San Francisco: Anderson Publishing.

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