Omar Bennett
A legal system is a structured framework of laws, institutions, and processes that regulate society, resolve disputes, and uphold justice. It includes rules created by legislatures, enforced by law enforcement agencies, and interpreted by courts. The type of legal system a jurisdiction uses will have a significant impact on the application of the law. The US legal system, for example, is a common law system, which means it is based on judge-made law and judicial precedent. In contrast, civil law systems, which are used in most of Europe and South America, rely on comprehensive legal codes and statutes. Religious law systems, on the other hand, are based on religious texts as their primary source of law.
| Characteristics | Values |
|---|---|
| Type of Legal System | Common law, civil law, religious law, and customary law |
| Basis of Law | Written law, unwritten law, or a combination of both |
| Sources of Law | Primary and secondary sources |
| Nature of Law | Mandatory, binding, or persuasive |
| Legal System Structure | Framework of rules, procedures, and institutions |
| Jurisdiction | Local, regional, or international |
| Law Interpretation and Enforcement | Legislatures, law enforcement agencies, courts, and legal professionals |
| Legal Profession | Lawyers, attorneys, judges, juries |
| Legal Process | Investigation, trial, and judgment |
| Legal Basis | Constitution, statutes, case law, religious texts |
| Legal Variation | Precedent, local practices, and hybrid systems |
| Legal Federalism | Decentralization of power between federal and state governments |
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What You'll Learn
Common law
The common law system originated in England in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. It was common to all the king's courts across England and gradually supplanted local folk courts and manorial courts, establishing a unified legal system. The English legal system was then spread across the British Isles, first to Wales, then to Ireland, and later to overseas colonies. Many former colonies, including the United States, continue to use a form of the common law system today.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. This involves ascertaining the facts, locating relevant statutes and cases, extracting principles, analogies, and statements by various courts, and then integrating all the information to determine the applicable law. The decisions of a court in a common law system are binding only in a particular jurisdiction, and even within a jurisdiction, some courts have more power than others. For example, decisions by appellate courts are typically binding on lower courts in the same jurisdiction.
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Civil law
The civil law tradition promotes cooperation, order, and predictability, reflecting a logical and dynamic taxonomy developed from Roman law. It covers a wide range of areas, including family law, contracts, property law, estate law, and personal rights. Civil law is found in various regions, including Continental Europe, Central and South America, Asia, and parts of Africa.
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Religious law
Christian canon law, for example, is applicable within the theological framework of the church but is distinct from secular state law in modern times. The canon law of the Catholic Church is the oldest continuously functioning legal system in the West, predating European common and civil law traditions. It is a highly complex legal system with its own legal codes, courts, lawyers, judges, and principles of legal interpretation. Similarly, Jewish law, or Halakha, is derived from the Written and Oral Torah and has developed gradually through judicial decisions, legislative enactments, and customary law. Islamic Sharia and Hindu law are also examples of religious legal codes.
In some countries, religious courts and laws continue to play a significant role in legal matters. For instance, in the Church of England, ecclesiastical courts still have jurisdiction over certain church-related matters, such as the discipline of clergy and issues related to church property and churchyards. These courts operate separately from the common law system in England and are governed by a mix of civil law and parliamentary statutes.
The interaction between religious law and secular law can be complex, especially in multicultural societies. After the events of September 11, 2001, academic interest in Islamic law and mixed religious-secular legal systems increased, highlighting the need to understand and address issues arising in such jurisdictions.
Overall, religious law constitutes a significant part of the legal system in many countries, shaping how laws are created, interpreted, and enforced within religious communities and, in some cases, influencing the broader society and its legal framework.
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Customary law
The recognition of custom within customary law presents a central issue: determining the appropriate methodology to identify what practices and norms constitute customary law. Scholars have characterized customary law norms in their own terms, as seen in the work of John Comaroff and Simon Roberts, who defined the rules and norms that constitute Tswana law. However, there is still disagreement, as John Hund critiques Comaroff and Roberts' theory, favoring H. L. A. Hart's conceptualization of how customary law principles are identified, defined, and operationalized in regulating social behavior and resolving disputes.
Hund addresses two forms of rule skepticism associated with customary law. The first form asserts that because customary law derives from practice, there are no objective rules, as only behavior informs their construction. This view challenges the distinction between behavior that adheres to the law and behavior motivated by other factors. The second form of rule skepticism acknowledges that a community may have rules, but these rules are not arrived at deductively through legal or moral reasoning but are instead influenced by the personal and political motives of those who create them. The loose and undefined nature of customary law grants customary lawmakers significant discretion in its application.
Customary international law, a form of customary law, can be established by demonstrating state practice and opinio juris. Many countries that formally recognize customary law mandate that its enforcement does not conflict with any statute, public policy, or enumerated values and principles. For example, in the United States, the customs and traditions of Native American tribes are binding and enforceable in tribal courts, influencing written opinions. Similarly, in South Korea, custom is considered a source of law, influencing civil, commercial, criminal, and family law.
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Federalism
The Tenth Amendment reserves powers to the states, as long as those powers are not delegated to the federal government. These reserved powers include creating school systems, overseeing state courts, creating public safety systems, managing business and trade within the state, and managing local governments.
Concurrent powers refer to powers shared by both the federal and state governments. This includes the power to tax, build roads, and create lower courts.
The advantages of federalism include allowing individual states to experiment with novel government programs as laboratories of democracy. For example, a single courageous state may try novel social and economic experiments without risk to the rest of the country.
However, judges and scholars disagree on how the basic principles of federalism should be realised. A key point of controversy is whether the judiciary should enforce the interests of the states against the federal government or leave the resolution of such key questions to the political process.
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Frequently asked questions
A legal system is a structured framework of laws, institutions, and processes that regulate society, resolve disputes, and uphold justice. It includes rules created by legislatures, enforced by law enforcement agencies, and interpreted by courts.
The four main types of legal systems are common law, civil law, religious law, and customary law systems. The type of legal system used differs across jurisdictions, with most of the world using a form of the civil law system.
Common law is a system of law created by the judiciary, based on case law and judicial precedent, rather than statute. The US and other former British colonies use a form of the common law system.
Civil law, sometimes called Napoleonic law, is a system of law governed by statutes, rather than by case law. Judges in civil law systems take a more active role in investigations. Most of Europe and South America use a civil law system.
In a religious law system, the law is based on religious texts, with courts interpreting statutes in light of these texts. Many Middle Eastern countries use religious law systems, with Saudi Arabia basing its legal system on Sharia law, derived from the Koran.
