The main difference between the two systems is that in common law countries, case law – in the form of published judicial notices – is of paramount importance, while in civil law systems, codified laws prevail. But these divisions are not as clear as they may seem. In fact, many countries use a mixture of features of the general law and civil law systems. Understanding the differences between these systems first requires understanding their historical underpinnings. The original source of the common law system dates back to the English monarchy, which issued formal orders called “writs” when justice was to be done. Since pleadings were not sufficient to cover all situations, fair courts were eventually created to hear complaints and develop appropriate remedies based on principles of fairness from many sources of authority (such as Roman law and “natural” law). As these decisions were collected and published, the courts were able to look for precedents and apply them to ongoing cases. That is how the common law developed. Before the Taliban took control of Kabul in August 2021, Afghanistan had a mixed legal system of civil, customary and Islamic (Sharia) law; After August 2021, the Taliban`s so-called “transitional government” claimed to implement its own interpretation of Islamic law, based in part on the Hanafi school of Islamic jurisprudence. Common law system based on the English model; Separate personal codes of law apply to Muslims, Christians and Hindus; Judicial control of legislative acts Civil law system based on the Spanish Civil Code and within the framework of the American federal system Therefore, neither of the two waves of Roman influence completely dominated in Europe.
Roman law was a secondary source that was applied only when local customs and laws on a particular subject were absent. After some time, however, local law was also interpreted and evaluated mainly on the basis of Roman law, as it was a kind of common European legal tradition and therefore in turn influenced the main source of law. Finally, the work of glossators and civil commentators has led to the development of a common body of law and writing on law, a common legal language and a common method of teaching and learning, all called the common juice or common law of Europe, consolidating canon law and Roman law and, to some extent, feudal law. Unlike common law systems, civil courts treat case law independently of precedent. of the Kouroukan Fouga, a charter proclaimed by the Mali Empire in 1222-1236, which lists the regulations in constitutional and civil matters and is still transmitted by the griots under oath today. [8] Napoleonic to Germanist influence: The Italian Civil Code of 1942 replaced the original of 1865 and introduced Germanic elements due to the geopolitical alliances of the time. [20] This approach has been copied by other countries, including Portugal (1966), the Netherlands (1992), Brazil (2002) and Argentina (2014). Most of them have innovations introduced by Italian legislation, including the unification of the Civil and Commercial Code. [21] Civil law system based on the Romano-Dutch model and influenced by customary customary law, except in Quebec, where civil law based on the French Civil Code prevails This entry contains a description of the legal system of a country. For a number of countries, a declaration on judicial review of legislative acts is also included. The legal systems of almost all countries are generally based on elements of five main types: civil law (including French law, Napoleonic code, Roman-Dutch law and Spanish law); Common law (including U.S.
law); customary law; mixed or pluralistic law; and religious law (including Islamic law). Another type of legal system – international law, which governs the conduct of independent nations in their relations with each other – is also discussed below. The following list describes these legal systems, the countries or regions of the world where these systems are applied, and a brief explanation of the origins and main characteristics of each system. Civil law – The most widespread type of legal system in the world, applied in various forms in about 150 countries. The civil law system, also known as European continental law, is derived primarily from the Roman Corpus Juris Civilus, a collection of laws and interpretations of law compiled under the Eastern Roman Emperor Justinian I between 528 and 565 AD. The main feature of civil law systems is that laws are organized into systematic written codes. In civil law, the sources recognized as authoritative are mainly legislation – especially codifications in constitutions or laws promulgated by governments – and secondarily custom. In some countries, civil law systems are based on more than one code. Common Law – A type of legal system, often synonymous with “English common law”, which is the system of England and Wales in the United Kingdom and is also in force in about 80 countries that were once part of the former British Empire or were influenced by it.
English common law reflects biblical influences as well as remnants of legal systems imposed by early conquerors such as the Romans, Anglo-Saxons and Normans. Some jurists attribute the formation of the English common law system to King Henry II (r. 1154-1189). Until the time of his reign, the laws that were common in the various seigneurial and ecclesiastical (ecclesiastical) jurisdictions of England were administered locally. Henry II established the king`s court and determined that the laws were “common” for the entire English Empire. The basis of English common law is a “legal precedent” – called stare decisis, which means “to stick to things decided”. In the English common law system, court judges are largely bound in their decisions by rules and other doctrines developed – and supplemented over time – by judges of earlier English courts. Customary law – A type of legal system that serves as the basis or has influenced current laws in about 40 countries – mainly in Africa, but some in the Pacific Islands, Europe and the Middle East. Customary law is also referred to as “primitive law”, “unwritten law”, “indigenous law” and “people`s law”. There is not a single history of customary law as found in Roman civil law, English common law, Islamic law or the Napoleonic civil code.