How Do Legal Systems Differ From One Country to Another?

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While shared histories and cultural similarities have left many countries with legal systems that are quite similar to one another, there are hundreds of unique systems of law in use throughout the world.

In many places, legal systems evolve at two different paces – the first, in response to gradual changes to society and national attitudes, and the second, at a rapid speed if a major national or political event – for example, a political revolution or conflict – happens to occur.

Unique geographical, historical, and political events can also have a huge effect on the legal system used by a country. Since the beginning of civilisation, legal systems have been essential for providing the rules of government, solving disputes, limiting social instability, and maintain ethical standards of fairness and justice.

A simple definition of legal systems could be “the laws that govern a certain country and the way and standard with which they are used.” A more advanced description is necessary, however, to understand the true complexity and value of legal systems.

In almost all cases, legal systems in every country involve five key features that both establish and limit their power:

• A national constitution, whether written or oral.

• Legislation, laws, and statutes that are prepared and authorised by a governing body, whether it takes the form of a parliament or a Senate.

• Subordinate laws, sometimes known as bylaws, prepared and authorised by a network of bodies that are granted powers by the primary legislation.

• Traditions, customs, and established behaviours practiced by the courts to create a consistent legal environment.

• A Civil, Common, or other code of laws that forms the primary source of principles and legal practices. In some legal systems, this may be based on a religious system.

Of these features, the final one – the country’s code of laws – that does the most to define the legal system and influence the way it operates.

The most prevalent form of legal system in the world is built on Civil Law. Like many cornerstones of the legal system, particularly in Western countries, systems built on Civil Law can trace their origins back to the 6^th century Roman Justinian code of law.

The Roman Justinian code of laws formed the primary law curriculum in medieval Europe’s universities. This factor resulted in its second popular name – Continental European Law.

Civil Law is based around a clear series of codified documents. In the example given here, these documents were the Roman Justinian documents as well as an additional range of documents from the medieval Canon Law.

In different settings, however, Civil Law became based on different documents. After the French Revolution resulted in the institution of secular and republican values, a new set of documents known as the Napoleonic Code of Civil Law was used. This is now the basis of many countries’ legal systems, including former French colonies.

The dominance of Napoleonic France in 19^th century Europe resulted in this form of Civil Law being established in countries such as Italy, Romania, Spain, and others. As Spain dominated South America during the 19^th century, many South American legal systems such as those Argentina, Chile, and Paraguay are based on the 1804 French Civil Code.

The influence of Belgium also exported this legal system to the African Congo. At the same time, however, a different Civil Law system was being created in Eastern and Central Europe, outside the control of Napoleonic France.

The German Civil Law System, which was based on the Roman System, which had been re-codified in 1811 and 1900, was known as the Allegemanes Burgerliches Gesetzbuch. The German system became the template for the laws of many other European countries, including Switzerland, Austria, Hungary, Portugal, and Greece.

Many countries located far from Europe, such as Japan, Korea, and China used the Allegemanes Burgerliches Gesetzbuch as the basis of their own legal systems. This system was also used in Russia during the design of its own legal system.

In Scandinavia, countries adopted the written Civil Laws of Rome but left out much of the Roman influence. Instead, they used Norse and Teutonic principles to create a legal system that better reflected their values. Both Finland and Sweden had unique Civil Codes by 1734, while Denmark and Norway’s Civil Codes date back to 1683.

Since so many countries use a Civil Law system, it is easy to identify common traits despite the numerous differences of each country’s own legal code. Civil systems are dependent on legislative statutes as the primary source of law, and the influence of the judiciary is generally only passive and technical.

In these systems, judges are heavily involved in investigation and fact-finding, and the adversarial trial system and precedent – both of which are important elements of other legal systems – are of limited importance.

Civil Law is principally based around working from the statutory texts, which makes it a consistent type of legal system in which clarity is immense. Because of this, it’s a very popular legal system that is used by many countries.

Despite the clarity and consistency of Civil Law, not all countries use it. Let’s look at the countries that use a different type of legal system – Common Law.
 

Common Law systems are, in many ways, the opposite of Civil Law. Unlike Civil Law systems, which rely on codified documents, Common Law is based on statutes and writs and relies heavily on legal precedent.

Because of this, the judiciary plays a far greater role in Common Law systems than in Civil Law systems, as their judgements are those that set the precedents. Because of this, Common Law systems are more reliant on court trials and case law.

Common Law evolved from an English legal system that came into place following the Normal conquest. This system was built around a combination of Roman legal principles, existing Anglo-Saxon laws, royal writs and orders from after 1066, and the new Norman French laws.

One of the best examples of early Common Law is Magna Carta, of 2015, which is an important piece of law that establishes the right of an individual to trial by jury. The language of law played a major role in early Common Law systems, as the laws were written in Latin and spoken in Norman French during the Middle Ages.

After the 18^th century, the laws became English and formed the basis of the English Common Law, which forms the backbone of the legal systems in all English speaking countries. These are mainly the countries colonised by the British Empire, including the United States, Australia, New Zealand, Hong Kong, and elsewhere.

Despite being independent of the British Empire, many of these countries maintain a legal system that’s built around English Common Law. Over time, the legal systems of these countries have evolved to suit local needs, but remain built on the British Common Law system.

While Civil Law and Common Law form the basis of legal systems in most European and English-speaking countries, as well as East Asian, Latin American, and African countries, not all countries use Common or Civil Law.

Many countries do not have secular legal systems, and instead depend on religious laws for her legal system. Countries that follow a legal system built on religious law view their laws as coming from a deity, often in the form of prophets.

These laws are typically eternal and immutable, making them far resistant to social changes and other factors that can lead to laws evolving in countries that use a Civil or Common Law system.

Legal systems built on religious laws are most common in Islamic countries, which vary in their use of purely religious law. Some Islamic countries use a system that is made up of both secular and religious laws, or operate distinct religious and secular legal systems.

The religious legal system, for example, may dictate the rules of marriage and family relationships, including divorce and parenting. The secular legal system may govern commerce and public legal issues. This is the case in Pakistan, in which the country’s 1935 Constitution is based on English Common Law, yet post-independence law is made up of both English Common Law and Sharia Law.

The legal systems of all countries, whether English speaking and Western or based on ancient religious laws, are determined by a combination of history, culture, and politics.

Since no culture is set in stone, no country’s legal system is incapable of adapting to changes in political or cultural circumstances, or trends that affect the existing legal system and require change.

As technology allows the world to become increasingly more global, an interesting question is emerging regarding the nature of dispute resolution in the future. Will disputes be settled in a Civil Law system or a Common Law system? Currently, the European Union and the United Nations are working towards an international legal system that bridges the gap between nations for international dispute resolution.

This article was written by LitigationFunding.com. Visit their website to learn more about the best options for legal funding.

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Lights, Camera… Appeal! - Simon Readhead QC, 1 Chancery Lane

20/07/13. It’s Channel 4’s fault! Was it just coincidence that on 10 July, the day after “The Murder Trial” was first screened on television, the Court of Appeal (Recording and Broadcasting) Order 2013 was published?

Or that yesterday (17 July) saw the release of the Crime and Courts Act 2013 (Commencement No 3) Order 2013 which, amongst other things, permits the Lord Chancellor by order to enable the making and use of films and other recordings of proceedings in courts in England and Wales?

Nick Holt's documentary concerned the retrial of Nat Fraser for the murder of his wife, Arlene, in Scotland. Mr. Fraser had already been tried and found guilty but in 2011 his conviction was quashed by the Supreme Court and the Channel 4 film followed his retrial.

Compressing a five week trial into two hours was always going to be challenging. Six remote cameras were placed inside the courtroom in Edinburgh with the consent of all the parties including Mr. Fraser who was re-convicted for the murder of his wife whose body has never been found after she went missing in 1998.

The public can already watch proceedings in the Supreme Court. The new Order sets out the conditions under which broadcasters in England and Wales will be able to film in the Court of Appeal later this year.

Currently, section 41 of the Criminal Justice Act 1925 makes it an offence to film in court and section 9 of the Contempt of Court Act 1981 makes it a contempt of court to record sound in court except with the permission of the court. The new Order provides that these provisions do not apply where the conditions in the Order have been satisfied. There is power in the Order to prescribe the types of hearing that can be recorded, what part of the hearing can be recorded and who can record a hearing. There is also power to set out when the recording of a hearing in the Court of Appeal can be broadcast and what content is permitted in a broadcast.

In “The Murder Trial” I thought Mr. Fraser's defence team did a pretty good job on his behalf. However, dramatic compromises were still necessary. These included the action in the court room being interspersed with shots of isolated forest tracks and a soundtrack clearly chosen to ratchet up the tension and anxiety.

Personally, I get all the tension and anxiety I need just by being in the Court of Appeal but when drafting my next skeleton argument, I will definitely give some thought to the music to go with it … just in case!

Simon Readhead QC
1 Chancery Lane

Image cc flickr.com/photos/56380734@N05/6790497767/

Transport Select Committee: Why It's Our Duty to Fight - Philip Waters, Camps Solicitors

19/07/13. The latest Transport Select Committee hearing into whiplash has yet again allowed the ABI and insurance companies to issue figures to media and government on how much whiplash claims allegedly add onto motor insurance policies every year. However these figures are nine years old and completely out of date. The reality is that, according to official government's own figures, the number of whiplash claims has fallen to a five year low, with 60,000 fewer claims last year. I am amazed that the legal industry has failed to properly question these numbers or challenge the ABI on whether there would be any savings should the law change.

Camps Solicitors has submitted written evidence to the enquiry on the real issues that would face victims were compensation claims subject to an increased limit of £5,000. As an industry, we must not allow powerful insurers to hijack the news agenda and bandy about figures for which there seems little substantiation. There are legitimate accidents every day and many of those who seek compensation are innocent victims of circumstance, left traumatised and injured. These are the people I see every day through my work for whom the legal profession has a duty to speak up. At a time when legal aid reforms have been condemned across the industry, our role in providing support to those who would otherwise not be able to access it has never been more important.

Of course we cannot have this debate without acknowledging the need to address the perception of a rapidly growing claims culture in the UK. Lawyers, insurers and those in the claims management industry need to act with professionalism and responsibility at all times to ensure the highest standards across the board. Indeed, since April the law has changed, and rightly there has been a clampdown on claims management companies and referral fees with the LASPO Act.

I am equally concerned, however, that the government appears to accept the insurance industry's suggestion that, in any situation, an individual enjoys better protection if his or her access to legal representation is removed. This is unbelievable, and akin to asking someone to sell their house on the basis of the buyer's valuation, without taking any independent advice. If these changes came to pass, someone with a valid claim for £4,950 following a non-fault accident, would have to pull together all of the necessary evidence, medical records and legal papers, and then represent themselves in the small claims court as a Litigant in Person (LIP). We will be creating a judicial system riddled with 'David V Goliath' battles as single person attempts to fight a team of professional lawyers acting on behalf of an insurance company. This is of course notwithstanding the added burden and costs to the tax payer at a time of budget cuts across the court system.

Our estimation is that with a lower claims limit set at £5,000, over 85% of current legitimate claims will be unfairly excluded. This means a considerable number of accident victims will be forced to represent themselves as an LIP,resulting in bottlenecks throughout the court system as inexperienced members of the public are forced to take on an insurer's legal team. In addition, the Law Society has disclosed to the Transport Select Committee that from a first insurance company compensation offer to a legally represented compensation offer, the difference is on average +274% in favour of the innocent victim. This should clearly demonstrate how the insurance industry is campaigning for change to save its own back pocket.

Therefore I urge the government to see if there are smarter ways of measuring whiplash claims limits before just introducing one cut-off point for all; a cut-off point that would see genuine claimants miss out on much needed funds to get them back on their feet. A far better solution would be for any claims limit to be index linked, tracking RPI.

A recent report by AXA recommends that whiplash victims should undergo MRI scans and x-rays to determine if they have a genuine case of whiplash. However Dr Andre Brittain-Dissont's evidence to the Transport Select Committee asserted that MRI scans and x-rays would only show fractured bones and would not show stretched or torn muscles, a key indicator of whiplash. Again the government needs to listen to medical professionals and not the insurance industry before it imposes laws that will be damaging to many innocent road traffic accident victims.

We propose that all accident claimants undergo an independent medical assessment from a thirrd party with no interest in the case. This would quite rightly outlaw the current insurance industry practice of making pre-medical offers. . If the insurance industry is so concerned with stomping out fraudulent claims, why make these offers in the first place? And, if we were to resort to an insistence on MRI scans and x-rays, would this not have enormous cost and resource implications? Would insurers pay for these costly checks? If so – surely this would have a knock-on effect when it comes to premiums? Or will the tax-payer once again foot the bill if tests are done via an already over-stretched NHS? Perhaps there is an ulterior motive here; to make the process so potentially costly that it deters the average person from making a claim, once again eroding access to justice for many genuine claimants

This is about securing personal justice. Whiplash and other motor accident injuries can be debilitating and victims deserve to be treated and restored to where they were before the accident. We need to pull together as an industry in order to make this happen.

Philip Waters
Camps Solicitors

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