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Comparison of Major Legal Families; a Reference of Nepal

• Suman Acharya
Abstract
Major legal system i.e. common legal system, civil legal system, socialist legal system, Islamic
legal system and Hindu legal system are dominant across the globe to maintain law and justice.
Initially all these legal systems had separate identity. But, these legal systems are operated in
hybrid form sustaining their previous legacy to the large extent in contemporary time. Common
legal system accepts precedent as a primary source of law whereas civil legal system doesn’t
recognize it. As a philosophical thought, Islamic and Hindu religions are based on their
religious scriptures and practices. Nowadays religious philosophies are amalgam either with
common law or civil law or socialist legal system. Because of the globalization, it is expected
that the legal system of the world is going toward homogeneity rather than heterogeneity.
Uniformity is expected out of heterogeneity concept of world legal system. International law and
multilateral agencies supported to unify the world legal system. There is the unification and
harmonization process of the world legal system. In a long run, the world communities are going
to follow similar principles but the sanction provision may vary from country to country in
upcoming era of legal regime. Legal system is necessary to follow by the application of
consensus approach. Better practices can be adopted and received or interchanged from all
kinds of legal system for the betterment of own legal system.
Introduction
Legal system is the set of laws and other socio economic background to make the effective law,
enforce it and amend it for the betterment of society. There is no clear demarcation of major and
minor legal families across the world. David and Brierley have classified major legal system
into Romao-Germanic, Anglo-American, Socialist and Religious legal system,
whereas Zeweigret and Kotz have classified major legal families into Romano-Germanic, Anglo-
American, Nordic, Socialist, Far Eastern, Islamic and Hindu. Moreover, Michael Bogdan has
sorted out major legal families as French Law, Germanic Law, English Law, USA Law, Socialist
Law, Chinese Law, and Muslim Law. It shows that there is no uniformity in the classification of

 Advocate/Nepal (PH.D.)

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major legal system. Expert has classified on the basis of their own criteria and standard.
However, the four major legal systems of the world today consist of civil law, common law,
socialist law and religious law. Yet, each country often develops variations on each system or
incorporates many other features into the system.
Major Legal Families

• Civil Legal family: Civil law is the most widespread system of law in the world. It is
known as Continental legal system or Romano-Germanic legal system etc. The central
sources of law are written laws or codified laws. It is derived from the Roman Empire.
• Common Legal Family: Common law and equity law are based on the decision of the
judges. Legislator enacts legislation based on the decision of the courts and court
regularly recognizes precedence system.
• Socialist law Family: It is based on the thought of Karl Marx and is influenced by
Communist Manifesto. This system argues that law, state and other disciplines are
superstructures and economics is the base or structure discipline.
• Religious Law family: Hindu law, Buddhist law, Canon law and Islamic law are major
religious legal system. Somewhere these religions are the part of state law whereas
somewhere these religions are followed by individual separately in secular state system.
We basically divide religious law under following category as per our necessity as
common and civil law are originated from canon law and Buddhist system is included in
a family of Hindu system.
▪ Islamic Law: The Islamic legal system is based on Quran and Sharia and
Fiqh law. It is based on monotheism on the name of Allah.
▪ Hindu law: This legal system is oldest religious philosophy of the world
originated from Indus Valley Civilization which is basically relied on
Vedic philosophy. It is the concept of polytheism.

• Nepalese legal system: In fact, Nepalese legal system is not major legal system rather it
is hybrid system of all legal system. We can find here the characteristics of civil law
family, common law family, socialist family and Hindu law family. Article 1 of the
Constitution of Nepal has emphasized that this constitution as fundamental law of

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nation1, Article 126 has supported on right to justice through judiciary2, Article 127
provides for the structures of court system3, and section 9 of Treaty Act has supported
international instrument as major sources of law4. Nepal accepts written law, precedent
and equity, justice and good conscience as sources of law.
Comparative study of different legal family
• Identification and name: Common law family is also called Anglo-American law,
English law, and judge-made law, whereas Civil law refers to the Continental law,
Romano-Germanic law etc. Socialist law is identified as communist law and religious
law is identified as the philosophy of Hindu, Muslim, Christian and other
scriptures. Old Testament and New Testament are the religious philosophy of canon law.
It has the impact on common and civil legal system.
• Origin: Civil law family is oldest legal family of the world which is originated from
Roman law whereas common law families originated after Norman Conquest in England.
British legal expert tried to differentiate their law from Roman law focusing on precedent
system which is distinctively stood across the world today as a separate legal legacy. The
origin of socialist legal family became possible after the promulgation of Communist
Manifesto in 1848 which was later implemented in USSR as a result of Bolshevik
Revolution whereas the origin of Hindu law is Veda and origin of Islamic law is Quran.
The usual distinction to be made between the two systems is that the common law system
tends to be case centered which is developed by judges in a case-by-case basis. On the
other hand, the civil law system tends to be a codified law which controls the exercise of
judicial discretion. Common law judges can use wide ranges of discretion whereas civil
law judges use judicial discretion. It is worth mentioning at this point that the European
Court of Justice is established on civil law principles and is increasingly recognizing the
benefits of establishing a body of case law as a secondary source although the European
Court of Justice is not bound by the operation of the doctrine of stare decisis and
precedent system.

1 Article 1, Constitution of Nepal, 2015.


2 Article 126, ibid.
3 Article 127, id.
4 Section 9, Nepal Treaty Act, 1990.

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• Follower country: Australia, England, Hong Kong, USA, Canada (except Québec),
Pakistan, India, Malaysia and common wealth nations are the follower of common law
system whereas France, Spain, Germany, Japan, Mexico, Québec, Netherlands including
other Scandinavian courtiers are the basic follower of civil legal family. Soviet Union,
China, Laos, Vietnam, North Korea are the major countries following socialist legal
family. Saudi Arabia and other Muslim country follows Islamic law but there is no single
nation following Hindu religious system completely. This religion is prevalent across
Nepal, India, Malaysia, Hong Kong, Bhutan, Bangladesh, and Barma as private law.
• Source: Case law and legislation are the key sources of common law whereas stature,
legislation and custom are the major sources of law under civil law family. Like civil law,
socialist legal family accepts stature and legislation as primary sources of law including
communist doctrine whereas Islamic family accepts the philosophy of Quran and Hindu
legal family accepts religious scripture and religious traditions as major sources of law. In
common law jurisdictions, state recognizes the principles that explain the results of the
cases. However, in common law jurisdictions, treatises are not the binding law because
based on the provision of treaty no case can be filed and lawyers and judges tend to use
these treatises as only finding aids. Civil law grants high value to scholarly work whereas
common law uses it for factual findings and policy justification. Traditionally, civil law
decision was very brief but nowadays they are using in line of common law reasoning.
• Legal Structures: There is the classification of private law and public law for officials
and general people respectively in civil law family whereas there is the classification of
substantial law and procedural law in common law family. It means socialist legal system
enormously supports grassroots level proletarian people and rejects the fundamental
guarantees of Bourgeois class people. Many Hindu and Islamic countries have also
accepted the basic rule of western legal system as subsidiary elements of their legal
system in cotemporary time.
• Government structures: Executive members are responsible for democratically elected
legislative authority under civil law system whereas government members are selected
from the member of upper or lower house who should be responsible for parliament
under common law system. Separation of power, balance of interest, and rule of law are
the common feature of both legal systems. However, ruling member or top leader of the

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party gets special status under socialist legal family because interest of the party and
nationality are the common benchmark for the court system under this legal system.
There is no unique feature of government system under Hindu religion as it has
extensively focuses on the value of King and his extraordinary feature under the direct
observation of 'Brhamins'. Shia and Sunni are separate group of Islamic religious family
representing rigid and flexible feature on same religion.
• Court structures: Regular courts like district court, high court and Supreme Court are
the features of common legal system whereas specialized court system is the features of
civil legal system. Socialist countries are accepting both regular and specialized court
system. Hindu system accepted King with the counsel whereas Islamic legal system
accepted quadi and Majalim for civil and criminal case gradually. The Imam decision
used to be final in Islamic system.
• Logic and reason: Courts share as balancing power in common law family whereas
courts have equal but separate power under civil law families. Courts are subordinate to
the legislature in socialist family. Courts and other government branches are subordinate
to the Sharia under Islam law and all the power holder are under religious law in Hindu
legal family. Civil law applies deductive method of logic whereas common law applies
both deductive and inductive method. Analogy is also used in both legal systems.
• Court Independency: Degree of judicial independency is high in common law family.
However, judicial independency is high but it is separate from government in civil law
family. There are very limited independencies of the courts in socialist and religious
family of law. Criminal procedure in common law is radically different from the civil law
system. The role of the jury is important in the common law. The judge's role is to
determine the applicable law based upon the facts as determined by the jury. The right of
a jury is the right of the defendant. This right may be waived by the defendant. If so is the
case, judge determines both facts and law.
• Court room process: Lawyers control court room in common legal system whereas
judge controls court room in civil legal system. Socialist legal system follows civil legal
tradition to control court room. Under Hindu religion, priest, authority and King control
the discussion process. In Islamic religion, there is the role of Imam, priest and other
authority. In Nepalese legal system, lawyers controls court room principally.

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• Hearing system: Hearing system of common legal system is open in nature whereas
hearing system of civil legal system is closed in nature. Socialist legal system also
follows close system. Islamic and Hindu legal system support for open hearing system. In
many case, Nepalese legal system follows open hearing system but in some of the case
like child, raped women, old man, closed hearing system can also be adapted.
• Legal profession: As a mother country of common legal system, England has senior
advocate, barrister and solicitor and notary public as legal professional whereas civil law
accepts advocate and notaries. However, there is difference between civil law notaries
and common law notaries. Common law notaries are entitled for translation, certification
and attestation whereas civil law notaries are local judges for petty cases as well. Under
the Hindu legal system, there was no lawyer’s provision. Priest and King used to play
important role. Even in Islamic legal system, there was no lawyer provision. Clergyman
and Imam are the professional of religion to grant justice.
• Judge appointment: Under common law system, judges are appointed from bar
members whereas under civil legal system judges are appointed from career path. Judges
and lawyers are separate profession in civil legal system. Party cadres are appointed in
socialist legal system and under religious system, King, priest and clergyman jointly
make decision but the decision of the King is final. King could delegate the power to
local authority as well to work in the capacity of judges.
• Judicial review: Judicial review of all organs is possible in common legal system but it
is granted with limited authority in civil legal system. No concept of judicial review in
socialist legal system. King and Imam are ultimate authority in religious legal system.
Nepal accepts judicial review system as a follower of common legal system.
• Separation of power: Separation of power between and among executive, legislative and
judiciary system are found in common and civil legal system. Executive organ are
powerful in socialist and religious legal system. Nepal follows separation of power based
on constitutional supremacy, not based on political and parliamentary supremacy.
• State system: Common law is originated from monarchial system whereas civil legal
system is originated from republican or presidential system. Socialist system is guided by
presidential system and religious legal system follows King or Imam System. Currently
Nepal follows presidential system. Previously it had monarchial system.

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• Parliament system: Common legal system follows West Ministerial parliamentary
system which accepts upper and lower house. Civil and socialist legal system follows
unicameral system and Islamic and Hindu legal system originally followed Imam’s
Council and King’s Council gradually.
• Discretionary power: Court exercises higher level of discretionary power in common
legal system whereas it exercises little discretionary power in civil legal system. There is
no discretionary power in socialist legal system. Imam or King uses discretionary power
in religious legal system. Nepal grants discretionary power to the judges under the
purview of prevailing laws.
• Court procedure: Common legal system follows adversarial system whereas civil legal
system follows inquisitorial legal system. Judges are umpire in common legal system and
they are more than umpire in civil legal system. Religious system originally adopted
indigenous inquisitorial system. Nepalese legal system largely adopts adversarial system.
Disputant parties present their case to neutral judge in adversarial system whereas
magistrate develops evidence and argument of both sides and present it to the president of
the bench as dossier. Judges can make direct interview with the witness and express the
comments. Most of the witnesses are examined in investigation phase. Evidence can be
changed in trial process. Even in the absence of pleading guilty, trial will be conducted.
• Classification of law: Common legal system classifies law as substantial and procedural
law whereas civil legal system classifies law as a private and public law. There is no
classification in socialist legal system. Customary law is the major part of Hindu legal
system and Sharia law and Quran law are major classification of Islamic legal system.
Nepal accepts substantial and procedural legal system.
• Sub-family: Religious family has also the sub family of legal system. Hindu Legal
system has two sub legal families; one is Mitakchara and another is Dayabhag.
Mitakchara school has also further subdivided into Banaras School, Mithila School,
Maharastra or Bombay School and Dravida or Madras School, whereas Dayabhag
School is further divided into Bengal and Assam School respectively. Muslim legal
family is also subdivided into Sunni law and Shia law School. Sunni school is also further
categorized as Hanafi School, Maliki School, Shaffi School, Hanabali School, whereas

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Shia School is also subdivided into different thought. Sunni School is more democratic
and liberal whereas Shia School is more orthodox in nature.
• Legal executors: Lawyers are dominant in common law family whereas judges are
dominant in civil law family. A socialist legal system follows same practices as civil law
and lawyers and judges have secondary role in religious family of law. Like this,
experienced lawyers can get the qualification for judges in common law families whereas
career judges are taken as qualified judges in Civil Law family. Career bureaucrats and
party members are taken as qualified member of judges in socialist family whereas
religious as well as legal training is basic benchmark of qualification of judges under
religious family. Juries are provided at trial level in common law family and they are not
recognized in civil law family. Juries are not allowed in religious family of the law.
Characteristics of major legal families

a) Characteristics of common law family

▪ Custom or tradition plays significant role


▪ Judges gives position of custom in case law
▪ Jury system is recognized ensuring public participation in adjudicatory
system
▪ Burden of proof is vested to plaintiff
▪ Benefit of doubt goes to the defendant
▪ Crime dies with criminal
▪ An accused is innocent until it is proved guilty
▪ The charge should be proved beyond reasonable doubt
▪ Principle of stare decis, ratio decidendi and res judicata are accepted.
b) Characteristics of civil law family

▪ Superior status of codified and written law


▪ Law making process through legislature
▪ Dual legal system as public and private
▪ Special, regular and tribunal court system
▪ Inquisitorial legal process
▪ Law is strictly abided by court. Judges cannot go beyond it.

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▪ Justice through plural judges
c) Characteristics of socialist law family

▪ Close link to civil legal system but philosophy is different


▪ Communist manifesto and philosophy are essence of legal system
▪ Law as the party instrument for development
▪ No independency of judiciary and separation of power
▪ Democratic concept for proletarian and autocratic for bourgeois people
▪ Influence of government in judiciary
▪ Strict application of law is the main duty of judicial system
d) Characteristics of Hindu law family

▪ Oldest version of Vedic testament


▪ Religion is not the synonym of Dharama; it is the broader concept of
human rights
▪ Salvation and eternity are the virtue of mankind
▪ Priest are above than ruler; King
▪ Ethics and realization are ground for punishment exemption
▪ No separate court system
▪ It is a kind of private law
▪ There is no hallmark nation constitutionally
e) Characteristics of Islamic law family

▪ Quran is the main doctrine and Fiqh and Sharia are the procedural rule
▪ Clergyman are the councilor for the religious application
▪ Dispute settlement through Quadi and Majalim as judge
Similarities between and among legal families:

The ultimate objective of all legal system is same which is to establish, peace, order, justice,
equality, social harmony, solidarity, mutual trust and mutual understanding. Only the means,
method, approaches and perception are different. If we delve the history of Civil and Common
Law, both touch its origin to the Roman law. Prior than 430 AD, England was the colony of
Roman Empire. Then after, common law was fundamentally developed rejecting the concept of

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Romanic notion in the backing of royal power to depict English law as distinctive or unique one
across the world. Both legal systems have extensively talked about the rule of law, justice,
separation of power, elected government etc. They equally utilize Romanic Proverb and Phrases
to denote their legal principle. From the point of view of jurisprudential thought, Civil Law,
Common Law and Socialist law are the unified concept of positive school of thought whereas
religious family i.e. Hindu, Buddhism, Canon (Christian) and Islam are inherently related to
natural school.

Nepalese legal system

Nepalese legal system is hybrid legal system. In early time, it was completely dominated by
Hindu Philosophy. However, same text and philosophy were codified under the order of former
Prime Minister Janga Bahadur Rana after his souvenir knowledge acquired during the visit of
England and France under the entitlement of ‘Muluki Ain, 1910 BS (1954 AD)’ which was
prepared with the sophisticated interaction of religious expert. On the one hand, Nepal has also
accepted different legislation as positive law as civil law system. Section 32 and 52 of Evidence
Act, 2031 BS (1974 AD)5 and Section 7 of Special Court Act, 2059 BS (2002 AD)6 have
supported inquisitorial system in Nepal. In some PIL cases, judges have formed committee to
investigate the particular event, incident or issues as it is followed in civil law system. On the
other hand, it has also followed adversarial system as common law system. As primary sources
of law, enacted law and precedent laws are followed whereas custom, legal writing, religious
text, foreign law are frequently accepted as secondary sources of law. Judicial review is allowed;
especially the legislative and administrative action. Upper court decision has to be followed by
lower court as precedent which is based on common law system.

Nepalese legal system basically follows the hierarchy of court like District, High and Supreme
Court. There are also provisions of different tribunals and Special Court to deal special cases as
it is found in civil law system. To start career in legal profession, certificate of Nepal Bar
Council is required after getting graduation in law. Judges are appointed from highly experienced
or qualified personnel. However, Nepal has also the influence of socialist legal system especially

5
Section 32 mentions Burden of proving that a person is Alive and section 52 provides for Examination-in-
chief and cross examination of the expert.
6
It grants power to Special court.

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in social welfare issues and directive principles of state. Amended Country Code has also
extensively covered the practices of Hinduism especially in Marriage Chapter, Coparcener
chapter, Inheritance chapter, and miscellaneous chapter of Civil Code Act. During the tenure of
Kingship, numerous practices were guided by Hindu Philosophy. Civil Code, 2074 BS (2017
AD), Civil Procedure Code, 2074 BS (2017 AD), Penal Code, 2074 BS (2017 AD), Criminal
Procedure Code, 2074 BS (2017 AD) and Sentencing Code, 2074 BS (2017 AD) accepted
common and civil legal procedure in hybrid from although they are the codified law in line of
Civil Legal System. There is speedy replacement of Hindu indigenous provision by western and
international law concept of the issues gradually in Nepal.

Future of major legal system

The concept of the major legal family is aroused to easily understand international practices of
law because each and every nation and their legal system cannot be studied in short period of
time if we do not classify in various group. However, International Court of Justice, European
Court of Human Rights, Court of Justice of the European Union, Inter-American Courts of
Human Rights, African Court on Human and Peoples' Rights, Court of Justice of the African
Union have made the concept of major legal system in fuzzy with their growing impact in
national system of country. Experts are advocating supranational concept to control the legal
system of the world. The effectiveness of it has yet to appear in practices despite some relevant
symptom. All these courts evaluate each case separately but the decision cannot be binding to
other same cases.

Despite it, the Article 38 of Statute of ICJ has specified the sources of international law as
International Convention, International Custom, the general principle of law recognized by
civilized nation and judicial decision7 gradually. With all these global and regional
intergovernmental institution, the legal system of the world is in the process of homogenization
in hybrid form. There is visible evidence that separate, independent entity, legacy and identity of
each legal system is under threat because of this reason in upcoming days. Western countries are
creating pressure to communist country to accept their concept of human rights and other
fundamental freedom. However, communist countries are rejecting their notion and trying to

7
Article 38, Statute of International Court of Justice, available at
http://legal.un.org/avl/pdf/ha/sicj/icj_statute_e.pdf, visited on 10/23/2018.

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endorse their own style which is unacceptable to western country. Religious families are almost
in the verge of complete transformation into modern statutory mechanism which is also under
threat. Awareness and educational program can only save them in near future to adapt speedy
transformation of manual society to technocratic society.

Conclusion
Despite the different kinds of legal families across the world, it is being clearly blurred in the
classification of legal system of the world in contemporary society. Basic characteristics of all
legal family can be found in same country for effective justice administration mechanism.
Because of the globalization, it is expected that the legal system of the world is going toward
homogeneity rather than heterogeneity. Uniformity is expected from heterogeneity of world legal
system. It seems that there is growing importance of case law in civil law following country and
codified criminal and commercial law in common law following country. Moreover, socialist
law resembles to civil law family despite some differences in political ideologies. Legislation
and statutory law are common to all legal system whereas the court has recourse the doctrine of
common law for the statutory interpretation. Increased legislation has limited but has not ended
judicial supremacy too. During the economic crisis or civil unrest, many liberal countries have
accepted the basic doctrine of socialist system for their social welfare that shows the importance
of all legal system for effective justice administration system.
References
• David, Rene and John E.C. Brierley, Major Legal System in the World Today (3rd Ed.),
Stevens & Sons, London, 1985.
• Glendon, Mary Ann, Michael W. Gordon et.al, Comparative Legal Traditions, West
Group, St. Paul, Minn., 1999.
• Gutteridge, H.C., Comparative Law, Universal Law Publishing Co. Pvt. Ltd, New Delhi,
2010.
• Michael Bogdan, Comparative Law, Kluwer Norstedts Juridik Tano, Sweden, 1994.
• Weeramantry, C.G., An Invitation to the Law, Lawman (India) Pvt. Ltd., New Delhi.,
1998.
• Zweigret, K., H. Kotz, Introduction to Comparative Law, Clarendon Press, Oxford , 1995
translated from the German by Tony Weir. Oxford, Clarendon Press, 1998.

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• Smits, Jan, 'Comparative Law and Its Influence in National Legal Systems', Mathias
Reimann & Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law,
Oxford 2006, pp. 477-512.

‘The End…’

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