Modern Legal Systems of the World: a comparative analysis

1. Modern Legal Systems of the World: a comparative analysis

A Course by Julia A. Karaulova

2. Outline of the Course: lectures

• Lecture 1. Concept of a Legal System:
classification criteria and main families.
• Lecture 2. Overview of Common (AngloAmerican) Law: history and evolution, basic
legal principles and components.
• Lecture 3. General Description of Civil
(Continental or Romano-Germanic) Law.
• Lecture 4. Legal System of the Russian
Federation.

3. Outline of the Course: seminars’ issues

• Constitution as a decisive criterion determining the jurisdiction basis of law
application. Definition of the concept. Types of constitutions depending on
a federal or unitary nature, separation of powers, the presidency, the
judiciary, written or oral form;
• Common law versus Civil law (based on such comparative criteria as role of
judges, constitution, precedent, jury opinion, history, sources of law, role of
lawyers and type of argument, evidence taking, etc. Common law versus
Equity;
• Division of institutions into private and public within Romano-Germanic
legal families. The goals and functions of private civil law. General
characteristics of public law in Continental law system. The Romance and
Germanic subsystems in Civil law. Comparative analysis of the French Code
of 1804 (Napoleon Code) and the Germanic Civil Code of 1896;
• Basics of public and municipal administration in Russia; the 1993
Constitution of the RF; the 1994 Civil Code of the Russian Federation:
history and further evolvements.

4. Lecture 1. Concept of a Legal System: classification criteria and main families

• Outline
1) The concept of a legal system;
2) Religious and secular legal systems: a
comparative overview;
3) Main families of secular legal systems: Civil
(Continental) Law, Common (Anglo-American)
Law;
4) Other systems: mixed systems, Nordic
Europe, Hindu Law, socialist law, Islamic law,
customary laws

5. Concept of a Legal System

• Legal System means jurisdiction’s basis of
applying law consists of (1) a constitution,
written or oral; (2) primary legislation, statutes,
and laws; authorized by constitutionally
authorized legislative body; (3) subsidiary
legislation or bylaws enacted by primary
legislation authorized body; (4) traditional
practices upheld by the courts; (5) Civil,
common, Roman, or other code of law as source
of such principles or practices (Black’s Law
dictionary)

6. Main Components of Legal System

• Constitution;
• Primary legislation;
• Subsidiary legislation;
• Customs and judicial practices;
• Codes (codified law) depending on a
jurisdiction

7. Division into Religious and Secular Legal Systems

Criteria
- Source of law;
- Scope of law;
- Enforcement of law

8. Main Idea of What Law Is:

• Religious systems
• Secular systems
• deity, legislating
• law is made by human
through the prophets;
beings;
• religious laws are
• secular rules can be
perceived to be eternal changed by their
and immutable
makers

9. Law Application

• Religious systems
• Secular systems
• tell people what to believe • deals with our external
as well as how to behave;
actions as they affect
others

10. Enforcement of Law

Religious Systems
Secular Systems
disputes are usually adjudicated by an
officer of that religion, so the same
person is both judge and priest
the office of judge is separate, and is
often reinforced by guarantees of
judicial independence
The sanctions and rewards of a
religious system may also occur in this
world, but are often to be felt most
keenly in the next
Sanctions are imposed in this world,
and its severest punishment (the death
penalty) amounts to forcible removal
from the jurisdiction

11. Dual Systems are Systems Where

• Religious law governs marriage, divorce, family
relationships and possibly family property, while
a secular system with state courts covers the
wider fields of public and commercial law. (e.g.
Israel, India, Pakistan).
• The Canadian Constitution Act 1982 begins by
stating that 'Canada is founded upon principles
that recognize the supremacy of God and the
rule of law.'

12. Main Families of Secular Legal Systems

• Civil (Continental) Law;
• Common (Anglo-American) Law

13. Differentiation Criteria

1) Place and Time of Origin;
2) Historical Foundations;
3) Key Feature;
4) Language;
5) Sources of Law;
6) Type of argument and role of lawyers;
7) Countries

14. 1) Place and Time of Origin

• Common Law:
• In the Medieval England after the Norman conquest
(1066) justices created a common law by drawing on
customs across the country and rulings by
monarchs. These rules developed organically and
were rarely written down.
• Civil Law:
• The Roman part of the Civil Law, preserved
in Justinian’s collection of 533 AD, was rediscovered
in the 11th century in northern Italy, and spread
from them throughout continental Europe

15. 2) Foundations

• Common Law:
• older Saxon law + the custom of the Norman
conquerors + rulings of Medieval English kings
• Civil Law:
• Justinian’s collection of 533 AD (Corpus Juris
Civilis) + canon law of procedure + customary
family law + Lex Mercatoria or Law
Merchant

16. 3) Key Feature

• Common Law:
• Case law or judge-made law developed by judges
through decisions of courts and similar tribunals
+ based on cases or precedents (stare decisis);
• Civil Law:
• its core principles are codified into a referable
system which serves as the primary source of law

17. 4) Language

• Common Law:
• The English language (legal Latin is used to a
small extent);
• Civil Law:
• Latin originally, then most European languages

18. 5) Sources of Law

• Common Law:
• 1. Constitution (not in the UK) 2. Legislation –
Statutes and subsidiary legislation 3. Judicial
precedent – common law and equity 4. Custom
5. Convention 6. International Law;
• Civil Law:
• 1. Constitution 2. Legislation – statutes and
subsidiary legislation 3. Custom 4. International
Law

19. 6) Type of argument and role of lawyers

• Common Law:
• Adversarial trial. Lawyers ask questions of
witnesses, demand production of evidence, and
present cases based on the evidence they have
gathered.
• Civil Law:
• Inquisitorial trial. Judges, not lawyers, ask
questions and demand evidence. Lawyers
present arguments based on the evidence the
court finds

20. 7) Countries

• Common Law:
• USA, England, Australia, Canada, India, former
colonies of the British Empire (80 countries)
• Civil Law:
• Spain, China, Japan, Germany, most African
nations, all South American nations (except
Guyana), most of Europe (150 countries)

21. Other Systems

- Mixed systems;
- Nordic Europe;
- Hindu Law;
- Socialist law;
- Islamic law;
- Customary laws

22. Nordic Europe Law

• - troublesome political history;
• - Roman law has had less influence in the region than in
Continental Europe and the Nordic states do not have
systematic codes as compared with those of countries like
France and Germany.
• There has been a tradition of legislative unification, or
cooperation, in the Nordic region since the latter part of the
nineteenth century. The work continues within the Nordic
Council, which was established in 1952.
• Denmark, Finland and Sweden are members of the European
Union. Iceland applied to join the EU in 2009 and accession
negotiations have been in progress since July 2010. Both
Norway and Iceland apply a large proportion of EU laws,
since they are members of the European Economic Area
(EEA).

23. Hindu Law

• Origin: guidelines given in the Vedas (divine
nature of law);
• Codified law: Hindu Marriage Act 1955, Hindu
Adoption and Maintenance Act 1956, Hindu
Minority and Guardianship Act 1956, and Hindu
Succession Act 1956.
Law Application: Hindu by religion; Hindu by
birth; persons who are not Muslim, Christian,
Jew, or Parsee by religion; persons who are not
governed by any other religious law

24. Islamic (Sharia) Law

• Origin: the actions and words of Muhammad,
which are called "Sunnah," and the Quran,
which he dictated;
• Applies to public behavior, private behavior and
even private beliefs;

25. Islamic (Sharia) Law

• 2 main sections:
• 1) The acts of worship (affirmation, prayers,
fasts, charity, pilgrimage to Mecca);
• 2) Human interaction (financial transactions,
endowments, laws of inheritance, marriage,
divorce, and child custody, foods and drinks,
penal punishments, warfare and peace, judicial
matters

26. Hindu Law (Cont.)

• Sources of Hindu Law:
• 1) ancient sources – ancient literature, local,
family, community and caste, guild customs;
• 2) modern sources - Equity, Justice, and Good
conscience, followed by the privy council while
deciding cases; precedent; legislation

27. QUIZ

28. PART 1. Choose the right answer:

29. #1 What is a legal system?

• 1) Customs,
together.
laws
and
traditions
brought
• 2) Primary legislation, statutes, and laws;
authorized
by
constitutionally
authorized legislative body;
• 3) basis of law application within a separate
jurisdiction

30. # 2. Subsidiary legislation means:

• 1) Acts and statutes enacted by primary
legislation authorized bodies;
• 2) regulations, rules, by-laws, etc, made by the
certain bodies, under powers conferred by an
Act to expand on or supplement such Act;
• 3) Civil, common, Roman, or other code of law.

31. #3. A religious legal system is:

• 1) based on deity made by human beings subject
to the maxim of stare decisis;
• 2) law referring to ethical and moral codes
taught by religious traditions;
• 3) a system where religious law governs
marriage, divorce, family relationships and
possibly family property, while state courts cover
public and commercial law disputes

32. #4.Civil (Continental) Law is based on:

• 1) Justinian’s Collection, Christian canon law
and decisions made by lawyers in the ancient
Roman Empire;
• 2) legal practices developed by Medieval
universities in Northern Italy;
• 3) the Roman law, canon law and customary
family law

33. #5.Common Law evolved as a result of:

• 1) the Norman conquest and further
colonization;
• 2) codification of old Anglo-Saxon customs and
rules;
• 3) rulings of medieval English monarchs and
customary family law

34. #6. What is the basic maxim of common law?

• 1) caveat emptor;
• 2) stare decisis;
• 3) prima facie

35. #7. What does this maxim mean?

• 1) let the buyer beware;
• 2) sufficient, unless the opposite is
demonstrated;
• 3) judge-made law.

36. #8.Which of three is not codified law?

• 1) the laws of Hammurabi;
• 2) the collection of Justinian;
• 3) ancient Hindu Law

37. #9.What is the main division within Civil (Continental) Law?

• 1) Public and private law;
• 2) Common law and Equity;
• 3) Civil and criminal law

38. #10.What statement reflects the basic distinction between inquisitorial and adversarial trial?

• 1) Unlike the adversarial system, where the judge is
neutral, the judge in the inquisitorial system is the
main player, who is expected to conduct the
investigation and give his verdict;
• 2) In the inquisitorial system, the accused has the
right to silence; however, rarely are they allowed to
exercise this right, as the main aim of the
inquisitorial system is to find the truth through
intensive investigation from all components of the
criminal justice system including the accused

39. #11

• Continental civil-law system is characterized by a clear
division of institutions into private and public. Private
civil law serves the interests of individuals and is built on
the principle of equality among them. In turn, public law
serves the interests of society as a whole and its main
representative - the State. These legal relationships are
built on the subordination of one party to another.
• A) TRUE
• B) FALSE

40. # 12

• Common law functions as an adversarial
system, a contest between two opposing parties
before a judge who moderates. A jury of ordinary
people without legal training decides on the facts
of the case. The judge then determines the
appropriate sentence based on the jury’s verdict.
• A) TRUE
• B) FALSE

41. # 13

• English common law emerged from the
changing and centralizing powers of the king
during the Middle Ages. After the collapse of the
Roman Empire, medieval kings began to
consolidate power and establish new institutions
of royal authority and justice.
• A) TRUE
• B) FALSE

42. # 14

• Legal scholars in Europe adapted the principles of
ancient Roman law to contemporary needs.
Medieval scholars of Catholic church law, or canon
law, were also influenced by Roman law as they
compiled existing religious legal sources into their
own comprehensive system of law and governance
for the Church.
• A) TRUE
• B) FALSE

43. # 15

• The modern countries of both Common Law and Civil
Law systems produce large amounts of legislation. In
common-law countries basic principles are not enacted.
In complete contrast, modern civil law systems tend to
think of themselves as 'codified'. The word 'code‘ means
that a whole area of law is laid down in one legislative
document which aims to provide a closed, coherent and
consistent set of propositions which can be applied to
solve any dispute in that area.
• A) TRUE
• B) FALSE

44. # 16

• While today’s Scandinavia was heavily
influenced by the Civil Law of the continent,
some scholars would not classify Scandinavian
countries as pure Civil Law jurisdictions.
• A) TRUE
• B) FALSE

45. # 17

• The modern sources of Hindu Law include
Equity, Justice, and Good conscience together
with the codified law on marital and family
issues.
• A) TRUE
• B) FALSE

46. # 18

• Islamic (Sharia) Law is based on the
words and acts by Muhammad
which are called “Quran”.
• A) TRUE
• B) FALSE

47. # 19

• Socialist law is law that started
evolving in the 19th century due to the
ideas of Marxism, on the basis of
Roman law.
• A) TRUE
• B) FALSE

48. # 20

• Legal system refers to a procedure or process for
interpreting and enforcing the law. It elaborates
the rights and responsibilities in a variety of
ways. Three major legal systems of the world
consist of civil law, common law and religious
law.
• A) TRUE
• B) FALSE

49. KEYS to QUIZ

#1 // 3;
#2 // 2;
#3 // 2;
#4 // 3;
#5 //1;
#6 // 2;
#7 // 3;
#8 // 3;
#9 // 1;
#10 // 1;
#11 // A;
#12 // A;
#13 // B;
# 14 // A
# 15 // B (constitutions in Common Law countries are codified law)
# 16 // A
# 17 // A
# 18 // B (the words and acts by the Prophet are called “Sunnah”, and the “Quran” is what he dictated;
# 19 // B
# 20 // A

50. PART 2. DEFINE THE TERMS

51. # 21. Define the terms on your own:

• Canon law means:
• Civil law means:
• Code means:

52. KEYS

• Canon law – the body of laws that govern the Catholic
Church and its members, deriving from the decrees and
rules (“canons”) made by the pope and ecclesiastical
councils.
• Civil law – the system of law that emerged in
continental Europe beginning in the Middle Ages and is
based on codified law drawn from national legislation
and custom as well as ancient Roman law.
• Code – the collection of laws of a country or laws related
to a particular subject.

53. # 22. Define the terms on your own:

• Codification means
• Common law means
• Corpus Juris civilis means

54. KEYS

• Codification – the process of compiling and
systematizing laws into a code.
• Common law – the system of law that
emerged in England beginning in the Middle
Ages and is based on case law and precedent
rather than codified law.
• Corpus Juris civilis – meaning “body of civil
laws,” the name given to the compilation of
Roman law ordered by the Byzantine emperor
Justinian I in 529 CE.

55. Questions to Answer & Issues to Comment On:

Questions to Answer & Issues to
Comment On:
• 1) What is a legal system?
• 2) What basic components does it include?
• 3) Explain what “primary legislation” means.
Give examples of your national jurisdictions.
• 4) What is subsidiary legislation? Give examples
of your own.
• 5) Identify mail legal families existing globally
and the relevant classification criteria.

56. Questions to Answer & Issues to Comment On :

Questions to Answer & Issues to
Comment On :
• 6) Describe religious legal systems in general.
Name the countries belonging to such legal
systems.
• 7) Can Israel be characterized as a religious legal
system?
• 8) Specify the main distinctions between
Common Law and Continental Law systems.
• 9) Speak on the origin of Common Law and/or
Continental Law.

57. Questions to Answer & Issues to Comment On :

Questions to Answer & Issues to
Comment On :
• 10) What are legal foundations for Common Law
and/ or Civil (Continental) Law?
• 11) What is an inquisitorial trial? In what legal
systems is it applied?
• 12) Describe the nature of “adversarial trial”.
What jurisdictions use this type of trial?
• 13) Speak on “public versus private law”
division.
• 14) Common Law versus Equity: what this
dichotomy means?

58. Questions to Answer & Issues to Comment On :

Questions to Answer & Issues to
Comment On :
• 15) Identify the other legal systems existing
globally in addition to Common Law and
Continental Law.
• 16) Provide a brief description of Nordic Europe
(Scandinavian) Law.
• 17) Specify the key features of Islamic (Sharia)
Law.
• 18) What is Hindu Law?

59. That is the end, guys! Relax and enjoy yourselves!