SSRN Id3413093
SSRN Id3413093
SSRN Id3413093
• 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.)
• 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
▪ 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
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
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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.
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It grants power to Special court.
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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
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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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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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‘The End…’
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