YUSUF ZULU-GAMBARI

14/40IL083
JIL 201 (NIGERIAN LEGAL SYSTEM)
DR A.A OBA

IDENTIFY FIVE DISTINCT LEGAL TRADITIONS IN THE

CONTEMPORARY WORLD AND THEIR AREAS OF
INFLUENCE AND DISCUSS THE CHARACTERISTICS OF
ANY FOUR OF THEM.
 A system refers to a whole composed of relationships among the members. 1 A legal
system therefore is a structure of legal rules and relationships that share distinct characteristics.
An example of legal systems is the Nigerian legal system. Legal systems that transcend mere
geographical designation and have been inherited in other legal systems are called legal
traditions or legal orders. There are several of these systems in the world today. Examples
include the Common law, Civil law, Jewish law, Socialist law, Canon law, Islamic law and
Customary law.2

We will be studying five legal systems and they are: Common Law, Islamic Law,
Customary Law, Civil Law and Socialist Law.

1. Common law: The common law legal system has its origin in the period just after the
Norman Conquest of England in 1066 A.D. it evolved from the customs common to the
whole of England and was developed by common law judges. 3 This is why it is referred to as
judge made law.4 The Common law tradition is quite ubiquitous. It can be found in most
former British colonies, Commonwealth countries such as India, Nigeria, Pakistan and some
English speaking countries.5 Its characteristics include:

 Judicial Precedent: The entire common law is more or less based on judicial
precedent or case law. Entire fields of law are only found in prior decided cases. Also,
a settled hierarchy of courts is usually in evidence and this gives binding effect to
legal pronouncements of superior courts on all lower courts.

 Flexibility: While the system of judicial precedent seems strict, it actually allows for
flexibility as courts can amend or overrule their own decisions as circumstances
demand. This allows for a gradual, organic development of the law while providing
justice for litigants similarly situated. This flexibility explains the uniqueness of
Common law jurisdictions such as England.

 Little codification: There is usually little codification in Common law legal systems
as the bulk of applicable rules are found in prior decided cases. Even the codes which
exist are not always comprehensive as there is an assumption that they will be
interpreted by the courts against the backdrop of existing rules, conventions and
decisions.

 Equity: This is the name given to that unique set of laws that developed to ameliorate
the harshness of Common law. Equity focuses on fairness and justice as against mere

1
Wex Legal Dictionary
2
List of National legal Systems, Wikipedia, https://en.m.wikipedia.org/wiki/List of national legal systems, accessed
on 20th November 2015
3
Sanni A.O, Introduction to Nigerian Legal Methods, p.
4
Ibid
5
List of National Legal Sytems, Op Cit
 formality or procedure. It became part and parcel of the Common law system when it
was merged with the Common law by the Judicature Acts.

2. Civil Law: This legal system is also known as continental or roman legal system. It is
historically based on the writings of scholars and academicians, with such writings
incorporated into and forming a large part of the applicable codes. 6 The civil law system is
one of the most prevalent legal traditions in the world today, with most of Europe, former
French, Dutch, German, Spanish or Portuguese colonies or protectorates, including much of
Central and South America and a large number of Central and Eastern European and East
Asian countries also following a civil law structure. Its characteristics include:

 Codification: The most distinctive feature of civil law legal systems is their emphasis
on codification. It is a running theme in all civil law jurisdictions and this is no
surprise seeing as the legal system is historically developed from the Justinian code.
The first comprehensive code was the Napoleonic code.7

 Bindingness of Statutes: Only legislative enactments are considered binding for all.
There is little scope for judge- made law in civil, criminal and commercial courts,
although in practice judges tend to follow previous judicial decisions; constitutional
and administrative courts can nullify laws and regulations and their decisions in such
cases are binding for all.

 Interpreted rather than developed: The role of the courts in civil law systems is
basically to interpret rather than develop the law. As such, the body of judge made
laws that thrive so well in Common law systems is missing here

 Antiformalism: An opposition to needless formality in the law. 8 This often manifests

in private law as consensualism i.e the rule that agreement creates contractual
obligations, no matter how it is expressed.

3. Islamic Law: The Islamic law legal tradition is based on divine inspiration as delivered,
through revelations, to the prophet Muhammad. Its sources include the quran, sunnah, ijma
and qiyas. Other legal rules may be derived from these sources through Ijtihad. Islamic law is
applied in most of the Middle East and several parts of Africa. Its characteristics include:

 No geographical limitation: The substantive rules of Islamic law apply to all muslims
everywhere. Though there are two major divisions of Islam viz. the Sunni and Shi’a,

6
Molina C.L et al, The Civil Law Systems: Characteristics and Institutions, p. 4
7
Ibid
8
Characteristic Features of Common and Civil Law, Infoplease,
http://www.infoplease.com/encyclopedia/society/common-and-civil-law-characteristic-features-of-common-and-
civil-law , accessed on 25th November 2015
 the basic dictates of the legal tradition are the same with little variation in different
legal systems.
 Immutability: Being divine, the Sharia doesn't change. Its rules are immutable and its
aspect unchanging. There is a tacit understanding that the rules contained therein are
divine and as such are not subject to the vagaries of human existence.
 Adaptability: The Sharia is deemed to be timeless. It has existed for ages and while
the conditions of human existence and societal perceptions may change, its rules
remain relevant and applicable in all situations.
 It is largely written: The majority of Sharia can be found in written form in the Quran
and the traditions. Though in the classical period, it only existed in the memory of the
Sahaba (the prophet’s companions).

4. Customary Law: The term customary law usually denotes a body of rules, norms and
practices which are accepted as obligatory by the members of a particular community. From
this definition, Customary law legal traditions have an underlying characteristic that involves
a reliance on usage, norms and conventions, usually indigenous to that community.
Practically all legal systems are based on Customary law as they involve the use of customs,
albeit in varying degrees.9 Most of Africa, some parts of Asia, particularly Mongolia,
Cambodia and China, several south American countries use customary law. Its characteristics
include:

 Usage: Customary law relies heavily on usage. Such usage usually starts life as an
error or convenience and gradually becomes a recognised mode of action such that
any deviation is likely to incur ire.
 Acceptance: Rather than being positive, Customary law is more organic. Its validity
and enforceability relies upon its acceptance by members of the community. As such,
no unrecognised custom can be enforced.
 Sanctions: Offences are treated as torts. Retribution is usually pursued privately in the
customary legal system.
 Geographical limitation: Generally, the substantive rules of Customary law vary from
one territory/ society to another. As such, in a country like Nigeria, there are over 250
ethnic groups with varying Customary laws and little similarity. It is against this
background that customary law has been described as a complex affair.

5. Socialist Law: It is the legal system in use in most Communist states. It is based on the civil
law system and the Marxist-Lenninist ideology.10 They are generally built on the notion that
the state, rather than the private individual, should own most of the property within its
jurisdiction. It was originally incorporated into the legal systems of the Soviet Union and its

9
Shelton, Dinah. "International Law." Microsoft® Student 2009 [DVD]. Redmond, WA: Microsoft Corporation, 2008.
10
World Encyclopedia of Law, Socialist Legal Systems, http://www.lawin.org/socialsit-legal-systems/ ,accessed on
25th November 2015
 former satellite states in Central and Eastern Europe. However, the Socialist law system has
waned considerably since the end of the Cold war and the collapse of the Soviet Union. 11
Currently, only states such as China, Cuba, Vietnam and North Korea continue to practice
their own versions of the system.

CONCLUSION
Some scholars have argued that the classification of legal systems into legal traditions is
unnecessary. They believe it is an exercise in futility as it is impossible to ascertain and keep up
with the changes of substantive and procedural law in all the world legal systems. However, this
argument is reductionist. The world is constantly opening up, connections are made everyday
and barriers are being broken down. This means that globalisation is becoming more of a reality.
As such, it has become necessary to study and compare legal systems so as to enable a
corresponding accessibility to the laws of nations. The substantive rules of these legal systems
can never be fully absorbed, hence the classification into legal traditions. They help one to avoid
a great mass of detail, allowing focus on the spirit and characteristics of those particular systems;
thus allowing more than a passing familiarity with what substantive rules that legal system will
contain. Classification just may be a step on the way to the achievement of a global order.

11
In 1989