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Introduction to Political Science

11.3 Types of Legal Systems around the World

Introduction to Political Science11.3 Types of Legal Systems around the World

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Table of contents
  1. Preface
  2. Introduction to Political Science
    1. 1 What Is Politics and What Is Political Science?
      1. Introduction
      2. 1.1 Defining Politics: Who Gets What, When, Where, How, and Why?
      3. 1.2 Public Policy, Public Interest, and Power
      4. 1.3 Political Science: The Systematic Study of Politics
      5. 1.4 Normative Political Science
      6. 1.5 Empirical Political Science
      7. 1.6 Individuals, Groups, Institutions, and International Relations
      8. Summary
      9. Key Terms
      10. Review Questions
      11. Suggested Readings
  3. Individuals
    1. 2 Political Behavior Is Human Behavior
      1. Introduction
      2. 2.1 What Goals Should We Seek in Politics?
      3. 2.2 Why Do Humans Make the Political Choices That They Do?
      4. 2.3 Human Behavior Is Partially Predictable
      5. 2.4 The Importance of Context for Political Decisions
      6. Summary
      7. Key Terms
      8. Review Questions
      9. Suggested Readings
    2. 3 Political Ideology
      1. Introduction
      2. 3.1 The Classical Origins of Western Political Ideologies
      3. 3.2 The Laws of Nature and the Social Contract
      4. 3.3 The Development of Varieties of Liberalism
      5. 3.4 Nationalism, Communism, Fascism, and Authoritarianism
      6. 3.5 Contemporary Democratic Liberalism
      7. 3.6 Contemporary Ideologies Further to the Political Left
      8. 3.7 Contemporary Ideologies Further to the Political Right
      9. 3.8 Political Ideologies That Reject Political Ideology: Scientific Socialism, Burkeanism, and Religious Extremism
      10. Summary
      11. Key Terms
      12. Review Questions
      13. Suggested Readings
    3. 4 Civil Liberties
      1. Introduction
      2. 4.1 The Freedom of the Individual
      3. 4.2 Constitutions and Individual Liberties
      4. 4.3 The Right to Privacy, Self-Determination, and the Freedom of Ideas
      5. 4.4 Freedom of Movement
      6. 4.5 The Rights of the Accused
      7. 4.6 The Right to a Healthy Environment
      8. Summary
      9. Key Terms
      10. Review Questions
      11. Suggested Readings
    4. 5 Political Participation and Public Opinion
      1. Introduction
      2. 5.1 What Is Political Participation?
      3. 5.2 What Limits Voter Participation in the United States?
      4. 5.3 How Do Individuals Participate Other Than Voting?
      5. 5.4 What Is Public Opinion and Where Does It Come From?
      6. 5.5 How Do We Measure Public Opinion?
      7. 5.6 Why Is Public Opinion Important?
      8. Summary
      9. Key Terms
      10. Review Questions
      11. Suggested Readings
  4. Groups
    1. 6 The Fundamentals of Group Political Activity
      1. Introduction
      2. 6.1 Political Socialization: The Ways People Become Political
      3. 6.2 Political Culture: How People Express Their Political Identity
      4. 6.3 Collective Dilemmas: Making Group Decisions
      5. 6.4 Collective Action Problems: The Problem of Incentives
      6. 6.5 Resolving Collective Action Problems
      7. Summary
      8. Key Terms
      9. Review Questions
      10. Suggested Readings
    2. 7 Civil Rights
      1. Introduction
      2. 7.1 Civil Rights and Constitutionalism
      3. 7.2 Political Culture and Majority-Minority Relations
      4. 7.3 Civil Rights Abuses
      5. 7.4 Civil Rights Movements
      6. 7.5 How Do Governments Bring About Civil Rights Change?
      7. Summary
      8. Key Terms
      9. Review Questions
      10. Suggested Readings
    3. 8 Interest Groups, Political Parties, and Elections
      1. Introduction
      2. 8.1 What Is an Interest Group?
      3. 8.2 What Are the Pros and Cons of Interest Groups?
      4. 8.3 Political Parties
      5. 8.4 What Are the Limits of Parties?
      6. 8.5 What Are Elections and Who Participates?
      7. 8.6 How Do People Participate in Elections?
      8. Summary
      9. Key Terms
      10. Review Questions
      11. Suggested Readings
  5. Institutions
    1. 9 Legislatures
      1. Introduction
      2. 9.1 What Do Legislatures Do?
      3. 9.2 What Is the Difference between Parliamentary and Presidential Systems?
      4. 9.3 What Is the Difference between Unicameral and Bicameral Systems?
      5. 9.4 The Decline of Legislative Influence
      6. Summary
      7. Key Terms
      8. Review Questions
      9. Suggested Readings
    2. 10 Executives, Cabinets, and Bureaucracies
      1. Introduction
      2. 10.1 Democracies: Parliamentary, Presidential, and Semi-Presidential Regimes
      3. 10.2 The Executive in Presidential Regimes
      4. 10.3 The Executive in Parliamentary Regimes
      5. 10.4 Advantages, Disadvantages, and Challenges of Presidential and Parliamentary Regimes
      6. 10.5 Semi-Presidential Regimes
      7. 10.6 How Do Cabinets Function in Presidential and Parliamentary Regimes?
      8. 10.7 What Are the Purpose and Function of Bureaucracies?
      9. Summary
      10. Key Terms
      11. Review Questions
      12. Suggested Readings
    3. 11 Courts and Law
      1. Introduction
      2. 11.1 What Is the Judiciary?
      3. 11.2 How Does the Judiciary Take Action?
      4. 11.3 Types of Legal Systems around the World
      5. 11.4 Criminal versus Civil Laws
      6. 11.5 Due Process and Judicial Fairness
      7. 11.6 Judicial Review versus Executive Sovereignty
      8. Summary
      9. Key Terms
      10. Review Questions
      11. Suggested Readings
    4. 12 The Media
      1. Introduction
      2. 12.1 The Media as a Political Institution: Why Does It Matter?
      3. 12.2 Types of Media and the Changing Media Landscape
      4. 12.3 How Do Media and Elections Interact?
      5. 12.4 The Internet and Social Media
      6. 12.5 Declining Global Trust in the Media
      7. Summary
      8. Key Terms
      9. Review Questions
      10. Suggested Readings
  6. States and International Relations
    1. 13 Governing Regimes
      1. Introduction
      2. 13.1 Contemporary Government Regimes: Power, Legitimacy, and Authority
      3. 13.2 Categorizing Contemporary Regimes
      4. 13.3 Recent Trends: Illiberal Representative Regimes
      5. Summary
      6. Key Terms
      7. Review Questions
      8. Suggested Readings
    2. 14 International Relations
      1. Introduction
      2. 14.1 What Is Power, and How Do We Measure It?
      3. 14.2 Understanding the Different Types of Actors in the International System
      4. 14.3 Sovereignty and Anarchy
      5. 14.4 Using Levels of Analysis to Understand Conflict
      6. 14.5 The Realist Worldview
      7. 14.6 The Liberal and Social Worldview
      8. 14.7 Critical Worldviews
      9. Summary
      10. Key Terms
      11. Review Questions
      12. Suggested Readings
    3. 15 International Law and International Organizations
      1. Introduction
      2. 15.1 The Problem of Global Governance
      3. 15.2 International Law
      4. 15.3 The United Nations and Global Intergovernmental Organizations (IGOs)
      5. 15.4 How Do Regional IGOs Contribute to Global Governance?
      6. 15.5 Non-state Actors: Nongovernmental Organizations (NGOs)
      7. 15.6 Non-state Actors beyond NGOs
      8. Summary
      9. Key Terms
      10. Review Questions
      11. Suggested Readings
    4. 16 International Political Economy
      1. Introduction
      2. 16.1 The Origins of International Political Economy
      3. 16.2 The Advent of the Liberal Economy
      4. 16.3 The Bretton Woods Institutions
      5. 16.4 The Post–Cold War Period and Modernization Theory
      6. 16.5 From the 1990s to the 2020s: Current Issues in IPE
      7. 16.6 Considering Poverty, Inequality, and the Environmental Crisis
      8. Summary
      9. Key Terms
      10. Review Questions
      11. Suggested Readings
  7. References
  8. Index

Learning Outcomes

By the end of this section, you will be able to:

  • Describe the different types of legal systems and explain how they differ.
  • Explain how the rule of law applies in different judicial systems.
  • Analyze how different judicial systems operate.

There are five basic types of legal systems in the world. They are civil law, common law, customary law, religious law, and hybrid or mixed systems. Today, mixed or hybrid systems are common. Because each system varies by country, this chapter will focus on the characteristic traits of each kind of system.

A world map shows the distribution of five basic types of legal systems. Much of Europe, South and Central America, and parts of Asia have civil law systems. North America, Australia, and parts of Asia and Africa have common law systems. Islamic law systems are found primarily in Northern Africa and the Middle East. A few countries, primarily in Asia and Africa, have customary law systems. Several countries, mostly in Asia, Africa, and the Middle East, have mixed systems.
Figure 11.4 This map shows the different types of legal systems in place around the world.43 (attribution: Copyright Rice University, OpenStax, under CC BY 4.0 license)

Note that before discussing different law systems, it is important to distinguish between what the term civil means in the context of legal systems and what it means in terms of civil versus criminal laws.

Common Law Systems

The US legal system, and other legal systems that emanate from British rule, is a common law system.44 Originally, common law meant judge-made law that filled in gaps when there was no written law. Judges looked to prior decisions to determine the unwritten judge-made law and apply it to new cases. However, today, almost all law is in writing and enacted by a legislature as statutes. Many statutes codify established common law, change it, or abolish it altogether, depending on the topic of the law. There are instances in which some unwritten common law is still enforced, but these are rare.

In a common law system such as the one in the United States, the courts’ reliance on precedent is referred to as stare decisis, or a policy of using judicial decisions made in the past to interpret written laws and appropriately apply those laws to the facts in the present case.45 The court interprets written laws, and these interpretations and applications of precedent from prior interpretations constitute what is meant by common law today. Precedent is critical for interpreting later cases, and only the same or a higher court can overturn precedent. The court process is adversarial rather than investigatory, with each side trying to win or persuade the court to agree with its perspective.46

Video

What Is Precedent?

This video discusses precedent and its importance in common law systems.

Common law courts are adversarial; that is, there is a winner-takes-all attitude in the court. In an adversarial system, each side determines the issues and questions it wants the court to resolve, conducts its own investigation, and prepares and presents its own evidence. Each side calls witnesses, who are questioned directly and by cross-examination. Each side brings out information it thinks is pertinent to prove its point. In a criminal case, the police and prosecutor work together closely to establish their viewpoint using the government’s resources. Defendants must rely on their own resources to defend against the charges, either hiring an attorney or using a court-appointed one. In a civil case, the procedures are similar; however, each side must rely on its resources to prove its point. If a jury is present, it decides all factual questions while the judge determines the legal issues and moderates the proceedings. In some cases, the judge can act as a fact finder in place of a jury.

Civil Law Systems

Most of Europe and South America use a civil law system.47 A civil law system relies on comprehensive legal codes that contain all laws for the country. Case law—that is, judicial decisions—is secondary to these codes. Decisions are binding only on the parties to the case, not as a precedent for later cases on the same issues. While attorneys will consult prior decisions when advising clients, judges are rarely bound to follow precedent. For this reason, codes of statutes are usually more extensive and detailed than in common law systems.

In civil law systems, court cases are investigations by the court to see how the facts fit into the already established codes applicable to the situation. The court system is set up so that the jurisdiction of each court is a specific type of code: tax courts, administrative courts, maritime courts, constitutional courts, and so on.

The system is more inquisitorial than adversarial. The process is a series of meetings, hearings, and written communications in which the judge takes testimony. The judge crafts the issues to be decided based on discussions with the parties. Typically, the judge questions the witnesses and can include or exclude any queries submitted by the attorneys when crafting questions. Finally, the judge determines the issues and gathers the evidence before announcing a decision.48 Only at the final hearing do the attorneys and parties make arguments to the judge. If there is a jury, its members usually are not drawn from the general public but are selected for their expertise in the particular area in question. While juries of ordinary people are rare in civil law systems, they are increasingly used in serious criminal cases.

These two systems, common law and civil law systems, are the most widely used legal systems in the world. They differ in terms of the weight they give to judicial precedent and their views on the purpose of the trial process.

Religious Systems

In a religious law system, the law relies on religious texts as its primary basis, and the courts interpret the present facts and statutes in light of those religious texts. Many Middle Eastern countries use religious law systems for all or part of their laws.49 For example, in Saudi Arabia, the legal system is based on sharia law, derived from the Koran, the Islamic religious text, as well as from the Sunnah and the Hadith.50 The legislature enacts statutes, but all are tested against Islamic tenets. Certain religious leaders can overrule any government act, including court decisions, on religious grounds. The legal system includes general and summary sharia courts, with some administrative tribunals for specific topics. Religious law systems do not use juries, and criminal trials do not present defensive evidence to the same extent as in other legal systems. Each judge, a specialist in the religious sharia text, makes their interpretation of the law and is not bound by any precedent.

Israel also uses some religious laws and courts to determine cases.51 For example, religious courts in Israel include Jewish rabbinical courts, Islamic sharia courts, Druze religious courts, and ecclesiastical courts of the 10 recognized Christian communities. In Israel, these courts are limited to some specific issues of family law. The secular court system decides all other matters.

Customary Systems

A customary law system is a system based on long-standing traditions in a particular community. The traditions have become so ingrained in society that the courts recognize them as enforceable rules. However, it is rare for customary laws to be interpreted and enforced by the government. Instead, select leaders of the group usually implement the customary laws. As a result, customary laws are typically unwritten and revealed only to group members. Today, customary laws are found in closed, isolated communities combined with common or civil law systems, allowing them to exist alongside government systems in a hybrid system.

Andorra, a small country in the Pyrenees bordering Spain and France, relies partly on customary law. In Andorra, sources of customary law include canon law, the ecclesiastical law of the Catholic Church, Castilian law, French law, and Roman law. Andorra was invaded and under the control of other European powers at different times in its history, and the Andorran legal system now reflects elements of each invader’s laws. Today, Andorra is a parliamentary co-principality between the president of France and the Roman Catholic bishop of Catalonia (Urgell). Andorra also has an elected parliament that can enact new laws.52

  Common Law Civil Law Religious Law Customary Law
Other Names Judge-made law; Anglo-American law Continental law; European law; Roman law Differs by religion; two prominent ones are sharia (Islamic law) and halakha (Jewish law) Differs by area, ethnicity, and tribe
Source of Law Case law and statutes, which may be organized in codes Statutes organized in codes Religious texts Long-standing customs, which may be oral or written
Degree of Judicial Independence High; important to society that judiciary appears to be independent of executive and legislature High; important to society that judiciary appears to be independent of executive and legislature Wide range, from very limited to high Wide range, from limited to high
Judges Wide variety of selection and qualification standards Career position requiring training and testing; civil servants Religious and legal training Varies widely with customs of the area
Policy-Making Role Due to stare decisis, shares power with individuals who come before the court and with government branches Equal but separate power as the enforcer of codes Depends on territory and topic area; paramount in some cases, advisory only in others Depends on territory and topic area; paramount in some cases, advisory only in others
Examples US (except Louisiana), UK, Canada (except Quebec) All European Union countries, Quebec, Louisiana Saudi Arabia, Iran, United Arab Emirates, Israel Guernsey, Andorra
Table 11.1 Differences among Major Legal Systems

The island of Guernsey is another example of a customary law system. Though it is one of the Channel Islands off the coast of England, Guernsey is not part of the United Kingdom. Guernsey’s legal system is derived from the medieval power of the monarch, the Duke of Normandy.53 The ancient duchy law of Normandy is an influential source of law in Guernsey. The duchy laws developed in two periods, the Ancienne coutume of 1199–1538 and the Coutume reformée of 1538–1804.54 Guernsey’s legal system also has elements of English common law and modern statutory law enacted by the island’s elected legislature. Guernsey enjoys almost complete autonomy over its internal affairs, and the country determines many issues based on ancient customary laws, with elected bailiffs and jurats making decisions.55

In the United States, some customary laws may be used in tribal matters on tribal lands recognized by the US government.56 However, the US government does exercise some control over tribal legal systems in the United States. There is a growing worldwide movement to recognize tribal autonomy and customary legal systems.57 For example, some Maori customary law is now recognized in New Zealand.58

Hybrid or Mixed Systems

A hybrid legal system combines parts of more than one approach to create a system unique to the country. Many countries have mixed legal systems incorporating common, civil, religious, and customary law systems.59 For example, the US state of Louisiana has a hybrid system. Louisiana uses some common law, but it also utilizes a civil law system for much of its state law and procedures because of its origins as a French territory. Also, on recognized tribal lands, customary laws of the tribe may be used rather than state or federal laws. Another example is the Philippine system, which includes French civil law, US-style common law, sharia law, and Indigenous customary law due to its history.60 Many African countries include a parallel tribal or ethnic legal system to adjudicate family law matters.61

A map shows the various types of legal systems present in the different parts of Africa. While different types of legal systems are used in different countries throughout Africa, every country except for Angola uses a mixed system.
Figure 11.5 This map shows the different types of legal systems present in Africa. (attribution: Copyright Rice University, OpenStax, under CC BY 4.0 license)
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