Legal system refers to a process of deciphering and enforcing law. The major recognized international legal systems consists of civil law, common law, Muslim law, customary law and the mixed systems. However, the legal system of each state is molded by its unique history (Baxter, 3). Therefore, to understand International law, it is important to evaluate the types of law and criminal justice systems in countries across the world.
Civil law is a legal system intellectualized within the framework of Roman law, and whose most predominant element incorporates core principles codified into a referable system which serves as the primary source of law. Ideally, civil law is the group of legitimate ideas and frameworks ultimately derived from corpus juris civilis, but vigorously overlaid by Napoleonic, Germanic, canonical and local practices as well as doctrinal strains such as regular law codification and legal positivism. Theoretically, civil law proceeds from deliberations, formulates general standards and differentiate substantive principles from procedural rules. Therefore, it holds case law secondary and subordinate to statutory law (Cappelletti and Mauro, 78)
Countries that practice civil law include continental Europe where most jurisdictions have certain civil codes. In Great Britain, Scotland has held uncodified system of civil law. Although they have civil codes Scandinavian nations are not viewed as civil law jurisdictions. In North America, civil codes are found in Louisiana and Quebec. All Nations in Central and South America practice civil law. In Asia, nations such as Japan, Indonesia, Kyrgyzstan and Lebanon have civil codes. African nations colonized by European countries have maintained various parts of civil law customs. The civil codes in Egypt have a noteworthy impact in Africa and the Middle East, while the Roman-Dutch law connected in South Africa was never classified (Cappelletti and Mauro, 56)
Common law is also referred to as judicial precedent, judge made law or case law. Ideally, it is a legal system derived from legal decisions of courts and comparable tribunals. The characterizing feature of common law is that it acts as a point of reference. Essentially, in situations where parties differ on what the law is, a precedent based law court refer to past precedential decisions pertinent courts, and incorporates the standards of past cases as relevant to the current realities. Therefore, if comparable cases have been settled before, the court is always bound to precedent over the principles utilized in prior cases. This principle is referred to as stare decisis. However, if matters of first impression arise, and legislative statues are uncertain on the inquiry, judges have the authority and obligation to determine the issues therein.
Consequently, the court expresses a sentiment that gives explanation behind their decision and those reasons must agglomerate with past decisions and principles as a point of reference to bind future judges and prosecutors. Common law as a law made by judges, remains rather as a measure of statues received through legislative principles, and regulations promulgated by the executive branch of the government. Therefore, stare decisis, the guiding rule that case ought to be decided according to reliable principled decisions so that comparable certainties yield comparative outcomes, lies at the core of all precedent based legal framework.
The common law system prevails in England, United States, and various nations colonized by England. It is distinct from civil law legal system which prevails in Europe and regions colonized by France and Spain. Additionally, common law is utilized in all American states except in Louisiana where French civil law and English criminal law forms a hybrid type of legal framework. Common law system is likewise as a part of Canada, aside from the province of Quebec, where French civil law prevails.
In America, federal courts use systems based on English common law, which has changed over time in that courts refer to other’s cases for guidance in situations of first impression and rarely refer to contemporary cases on the same issues in countries like UK or other commonwealth countries.
Customary law relates to established code of conduct that can be impartially verified within a specific social setting. Therefore, a claim can be established in defense of what has predominantly been done and accepted by law. Consequently, customary law is related with the idea of prescription, a privilege delighted through identifiable customs as opposed to positive law. Additionally, customary laws deal with standards of a community established in a given locale. However, the term can relate with international law where various standards are universally accepted. Example is law against slavery and piracy (Palmer and Vernon, 5). Generally, customary law is found at tribal, local districts level, counties and villages. The traditional rights and obligations are unique to a particular society or culture and vary from community to community. Essentially, customary law is often oral rather than written, it uses a case by case approach to settling disputes and sometimes involve informal mediation or arbitration.
Ideally, customary laws are applied in countries that lack a strong formal justice system. However, customary plays a significant part in matters relating to personal status, in a relatively high number of political systems which have mixed legal systems. This obviously applies to most countries in Africa but also the case, albeit under different situations, regarding the law of India or that of China. Countries such as Andorra, Guernsey and Jersey are customary mono-systems. Mozambique, Guatemala, Afghanistan, Liberia, Iraq, and Sudan emphasizes on a practical approach to customary justice as opposed to setting a predetermined end state, example, abolishment of systems that often offer locally authentic procedures for disputes resolution and peacefully resolving grievances.
United states acknowledge that customary law especially that related to Indian customs regulates crimes, relationships and transactions within the concerned society. However, as opposed to other customary law monosystems, in USA customary rights are not recognized in the courts.
Muslim law is incorporated under religious legal system. Other religious legal systems include the Canon law, Islamic law and the Talmudic law. Ideally, Islamic law applies in Muslim communities to varying extent. Consequently, Islamic law encompasses basic set of rules derived from Koran and the Sunnah, and a variety of legal interpretations (Smits, 5).
In some countries, Islamic law only precedent over family matters while other legal issues are handled through a secular court system. Afghanistan, Maldives, and Saudi Arabia are Muslim law monosystems; other nations apply a variety of approaches; some apply Islamic law in combination with secular law; and others apply Islamic in a modified form. Essentially, Muslim law legal interpretation depend on the branch of Islam practiced within the concerned country.
Mixed Legal systems
Mixed legal systems incorporates legal systems where two or more systems apply cumulatively or interactively as well as where juxtaposition of legal systems exist as a result of clearly defined fields of application. Example, countries such as South Africa, Namibia and Mauritius among others apply civil law and common law. Korea and Madagascar apply mixed systems of civil and customary law (Smits, 8).
Common law as the best type of legal system
Although common law is slow, reactive rather than proactive and made by judges who are direct representative of the common citizens, it allows law to respond to real life situations. Essentially, common law expands, clarifies and implements legislation thus providing instruction on law but not how it should work in certain situations (Palmer and Vernon, 8). In addition, common law can respond to unforeseen facts or anticipated legislators. Consequently, the doctrine of precedent applied in common law provides consistency and stability in the legal system.
However, precedents can be challenged thus allowing flexibility and change in law making. Additionally, common law political independence and fast in responding to parliamentary law thus allowing a quick change in social values and community expectations.
Baxter, R.R. “Introduction to International Law.” Readings in International Law from the Naval War College Review, 1947-1977. (1980): 1-10. Print. https://archive.org/stream/readingsinintern61moor/readingsinintern61moor_djvu.txt. Accessed 22nd Jan 2018
Cappelletti, Mauro. “The Doctrine of Stare Decisis and the Civil Law: A Fundamental Difference, or No Difference at All?” Festschrift Für Konrad Zweigert Zum 70. Geburtstag. (1981): 381-393. Print. https://openaccess.leidenuniv.nl/bitstream/handle/1887/22742/T_Koopmans-Stare_decisis_in_European_law.pdf?sequence=1 Accessed 22nd Jan 2018
Palmer, Vernon V. “Mixed Legal Systems … and the Myth of Pure Laws.” Louisiana Law Review. 67.4 (2007): 1205. Print. https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?referer. Accessed 23rd Jan 2018
Smits, J.M. “Introduction: Mixed Legal Systems and European Private Law.” The Contribution of Mixed Legal Systems to European Private Law. (2001): 1-13. Print. http://digitalarchive.maastrichtuniversity.nl/fedora/get/guid:2dbcbdeb-d489-40df-bb0a-e4c32a467a9e/ASSET1. Accessed 23rd Jan 2018