Major Legal Families of the World 8th May, 2010

Table of Index

CHAPTER - 1......................................................................................................................................3
1.1. INTRODUCTION TO THE TOPIC...............................................................................................3
1.2. CLASSIFICATION OF LEGAL SYSTEMS OF THE WORLD................................................................3
1.2.1. SOURCES OF LAW..........................................................................................................4
1.2.2. IDEOLOGY AND LEGAL TECHNIQUE..................................................................................4
1.2.3. SUBSTANCE OF LEGAL SYSTEM......................................................................................5
1.2.4. LEGAL STYLE...............................................................................................................5
1.2.5. TRADITION...................................................................................................................6
1.3. PRESENT CLASSIFICATION OF THE LEGAL FAMILIES...............................................................6
CHAPTER 2..................................................................................................................................8
CIVIL LEGAL SYSTEM........................................................................................................................8
INTRODUCTION...............................................................................................................................8
2.1. CIVIL LEGAL SYSTEM..........................................................................................................8
2.2. COMMON LEGAL SYSTEM....................................................................................................9
CHAPTER 3................................................................................................................................12
CIVIL LAW ELEMENTS IN COMMON LAW SYSTEM...................................................12
3.1. RESTITUTION....................................................................................................................12
3.2. NEGLIGENCE - DELICT - THE GENERAL TORT OF NEGLIGENCE...........................................12
3.3. FORESEEABLE CONTRACTUAL DAMAGES.............................................................................12
3.4. PRE-JUDGMENT INTERESTS................................................................................................13
3.5. CONTRIBUTORY NEGLIGENCE............................................................................................13
3.6. DIFFERENCES IN THE TWO SYSTEMS....................................................................................14
CHAPTER 4................................................................................................................................15
SOCIALIST LEGAL SYSTEM................................................................................................15
4.1. INTRODUCTION..................................................................................................................15
4.2. THE SOCIALIST SYSTEM AND RUSSIA..................................................................................15

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4.3. THE SOCIALIST CONCEPT OF LAW......................................................................................16

4.4. SIMILARITIES BETWEEN CIVIL LAW AND SOCIALIST SYSTEMS................................................17
4.5. DIFFERENCES BETWEEN CIVIL LAW AND SOCIALIST SYSTEMS...............................................18
4.6. INQUEST ON THE RUSSIAN EMPIRE......................................................................................18
CHAPTER - 5....................................................................................................................................20
RELIGIOUS LEGAL SYSTEMS.............................................................................................20
5.1. INTRODUCTION..................................................................................................................20
5.2. CLASSIFICATION OF RELIGIOUS LEGAL SYSTEM...................................................................21
5.2.1. ISLAMIC LAW OR SHARI’AH LAW...............................................................21
5.2.2. JEWISH LAW.......................................................................................................24
5.2.3. CHRISTIAN CANON LAW (ROMAN CATHOLIC CHURCH)...................25
5.2.4. HINDU LAW.........................................................................................................27
5.2.5. BUDDHIST LAW AND LEGAL THEORY......................................................28
5.2.6. CONFUCIAN LAW AND LEGAL THEORY...................................................29
CHAPTER – 6...................................................................................................................................31
CONCLUSION....................................................................................................................................31
BIBLIOGRAPHY BOOKS REFERRED: -...............................................................................................32

BIBLIOGRAPHY BOOKS REFERRED: -

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CHAPTER - 1

1.1.Introduction to the Topic

Comparative law is the study of differences and similarities between the laws of different
countries. A legal system consists of a set of rules and regulations which help to govern various
countries. Different legal systems developed around the world according to the need and
requirements of the nation. When people stay together differences and disputes are inevitable
part and thus, in order to regulate these there’s a need to have a regular framework for our
relations. More specifically, it involves study of the different legal systems in existence in the
world, including the common law, the civil law, socialist law, Islamic law, Hindu law, and
Chinese law. It includes the description and analysis of foreign legal systems, even where no
explicit comparison is undertaken. The importance of comparative law has increased
enormously in the present age of internationalism, economic globalization and democratization.

1.2.Classification of legal systems of the world

It is the necessity of the time that one must be well versed with all the legal systems prevailing
in the world. But it is quite difficult to study all the major legal systems of the world
simultaneously. There are some of the basic questions that a comparative lawyer faces. Well
there seems to be a general consensus that clustering legal systems are more practical. Different
approaches, however, exist as how to a group of legal system. The challenge is to develop a
classification method that merges similar legal systems in a most comprehensive way without
being random or fragmented. We would like to discuss five criteria for grouping the legal
systems of the world1:

1. Sources of law.

1 Rene David, Traite Elementair De Droit Civil Compare (1950), modified in Rene David & Camille Jauffret-
Spinosi, Les Grands Systems De Droits Contemporains (1992).

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2. Ideology and legal technique

3. Substance of legal system
4. Legal style
5. Tradition

Detailed description:

1.1.1. Sources of law:-

A straight forward way of classification is to divide the legal system into groups that
differ in terms of sources of law, i.e., their source of origin and development. For e.g.:-
A. Civil law Countries :- Civil law is a legal system inspired by Roman law, the
primary feature of which is that laws are written into a collection, codified, and
not (as in common law) determined by judges. Conceptually, it is the group of
legal ideas and systems ultimately derived from the Code of Justinian, but heavily
overlaid by Germanic, ecclesiastical, feudal, and local practices, as well as
doctrinal strains such as natural law, codification, and legislative positivism.
Materially, civil law proceeds from abstractions, formulates general principles,
and distinguishes substantive rules from procedural rules. It holds legislation as
the primary source of law, and the court system is usually inquisitorial, unbound
by precedent, and composed of specially-trained judicial officers with a limited
ability to interpret law.
B. Common Law Countries :- Common law is law developed by judges through
decisions of courts and similar tribunals (also called case law), rather than through
legislative statutes or executive branch action. A "common law system" is a legal
system that gives great precedential weight to common law, on the principle that it
is unfair to treat similar facts differently on different occasions

1.1.2. Ideology and legal technique

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Another classification in basically ‘the ideology of the nation itself’, i.e., the people of
the nation and the technique used by those people, in codification or defining their legal
system. There are major 5 legal families which fall under this category.
A. Western System: - Western legal system is basically based upon the ancient
western thought and Bible. The Western thought is basically Romano – Germanic
law
B. Socialist system: - Socialist legal system is basically the birth of Marxist-Leninist
ideology. It was originated in USSR and presently followed in Russia, China
Cuba etc.
C. Islamic Law: - Islamic law is basically derived from Sharia Law. It is said that
Sharia is derived from two primary sources, the divine revelations set forth in the
Qur'an, and the sayings and example set by the Prophet Muhammad in the
Sunnah
D. Hindu Law: - It is basically the norms which a Hindu must follow in his daily
deeds. It is mentioned in the ancient Hindu texts like Manusmiriti, Upanishads
etc.
E. Chinese law: - it is the outcome of Confucians ideology. It is one of the ancient
religions of China. In 20th century, China was under the Soviet Union. So, its
legal system is also a sort of socialist legal system.

1.1.1. Substance of Legal System

A different way of grouping a legal system is the focus on their substance, in particularly
their originality, derivation and common elements. On this basis there are basically 7
legal families.
A. French Family
B. German Family
C. Scandinavian Family
D. English Family
E. Russian Family

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F. Islamic Family
G. Hindu Family

1.1.1. Legal style

The idea of style is derived from the art. In law, style is characterized by historical
background and development, mode of legal thought, distinctive institutions and
ideology. In short, it is the combination of all the above characteristics.
On this basis, the families are divided into 8 catagories.
A. Romanistic family.
B. Germanic family
C. Nordic family
D. Common law family
E. Law of Peoples Republic of China
F. Japanese law
G. Islamic law
H. Hindu law

1.1.1. Tradition
A rather new ways of groping legal systems is to look at how they transmit information
from past to the present. On this basis, the families are divided into 7 categories.
A. Talmudic legal tradition
B. Cationic legal tradition
C. Civil law tradition
D. Islamic law tradition
E. Common law tradition
F. Hindu legal tradition
G. Asian legal tradition

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I.3. Present Classification of the Legal Families

It is still difficult to study the stuff in all these families. It’s practically quite inconvenient to go
through 25+ legal families existing in the world. Hence, in present Comparative Legal Studies,
we had further refined the stuff into five major legal families. The reason is also that due to
globalization, all the major countries came in contact with each other and adopted certain traits
of other systems, which they feel comfortable for themselves. So, on this basis, now the
families are divided into following four major categories.
I. Common Legal System
II. Civil Legal System
III. Socialist legal System
IV. Religious legal System

The above legal systems will be dealt in details in the following chapters

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CHAPTER 2
CIVIL LEGAL SYSTEM
Introduction
Legal system as a term is used for an operating set of rules, institutions and procedures. A legal
system is not like a chair, a horse or a book. It is not a well defined concept in the social world 2.
To understand legal system it is important to understand the difference between legal tradition
and legal system. Legal tradition is not a set of rules about marriage contracts, corporations and
crime3. Legal systems are also divided into various groups or families. System of rules that
regulate behavior and the processes by which the laws of a country are enforced and through
which redress of grievances is obtained. Some of the legal families include socialist legal family,
Romano-Germanic Legal family.

2.1. Civil Legal System

Now talking about the Civil law family which has been originally been derived out of the
Romano-Germanic family. Civil or civilian law is used as a base in many countries throughout
the world. Some of the countries are - continental Europe, but also in Quebec (Canada),
Louisiana (USA), Japan, Latin America and most former colonies of continental European
countries. Latin America as well as many parts of Asia and Africa has adopted the civil law
system and this is to be distinguished from the Anglo-American Law which is also called as the
Common Law system. It is the law of continental Europe, which based on a mixture of the
Roman, Germanic, ecclesiastical, feudal, commercial, and customary law.
The term jus civil means Civil law. This word was basically used in the Ancient Rome to
distinguish it from the law which was present in all the countries also known as jus gentium. The
particular phrase can also be used for distinguish the public law from the private and the
commercial law. Here private law basically means the law which governs the activities between
individual and is different from the laws governing individual to higher institutions such as the

2 Lawrence Friedman, The Legal System, 2nd edition, Russell Sage Foundation, London, 1975, p.1
3 Peter De Cruz, Comparative Law in Changing World, 2nd Edition, Routledge, Delhi, 1999, p. 7

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state, this is however called as the public law. The civil law system basically focuses on the
private law, which makes it different from the civil legal traditions. Finally, the national law of a
country is sometimes called civil law, in contrast to international law. In spite of all this few
lawyers use the term civil law is to refer to the entire legal system in nations falling within the
civil law tradition4.
Louisiana of the United States is a civil law system, even though western and south western
parts of the U.S., laws in such diverse areas as divorce and water rights show the influence of
their Iberian civil-law heritage, being based on distinctly different principles from the laws of
the north eastern states colonized by settlers with English common law roots. It is also known as
a system of law based on a very detailed set of codes and written laws. The code of civil law of
1964 emerged on the wave of great codification in Poland.5

2.2. Common Legal System

Now talking about the common law system, the common law is today as fertile a source for
theoretical inquiry as it has ever been6. The common law includes both civil and criminal law,
the former refers to the law of contract and tort the latter refers to the law of crime. The history
of the common law is worthy of attention, it has Evolved in England from the 11th century
onwards7. As a result of a natural order, it solidified into custom and then into law. But, during
the period between the Norman Conquest of England and the settlement of the American
colonies, it has spread to other parts of the world. In Asia, it is imposed in territories under
British rule, dating back to 18th and 19th centuries (E.g., HK, Malaysia, Singapore, India,
Australia, NZ, Fiji, and Brunei etc.).
This is also called as the Anglo-American law. It is basically the body of customary law, which
is based upon the judicial decisions and is embodied in reports of the various decided cases,

4 John Merryman, The Civil Law Tradition, 10th Edition, The Stanford University Press, London, 2007, p.6
5 vide Code of Shipping Law(1961), Code of Family law (1964), Code of Civil Law(1964), Code of Civil
Procedure (1964), Code of Private International Law (1964), Code of Administrative procedure (1960), Code of
Criminal law (1969), Code of Criminal Procedure (1969)
6 Douglas Edlin, Common law Theory, 13th edition, Cambridge University Press, New Delhi, 2007, p.1
7 Mathew Haleand & Charles Grey, The History of the Common Law of England, 4th edition, University of
Chicago Press, Chicago, 1971, p.13

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which has been administered by the common-law courts of England. This is the basic foundation
for the law which is found in various commonwealth nations and the United States. Common
law stands in contrast to rules developed by the separate acts of equity, to statute law, and of
course to the legal system derived from civil law, which is wide spread in various countries.
But according to Blackstone, this law has emerged in contradiction to the other laws or more
reasonably law common and general to the whole realm, and used in wide and large sense,
comprehends not only the general law of the realm but also of the that given by the various
statutes8.
The common law also works with jurisprudence, which are basically the cases. And it can be
both written and unwritten. Common law categories were also founded on the law, common law
and of Equity. Here the cases are also the primary sources of the whole legal system to function.
And the legal rule which forms a very important part of the common law system is also made by
the judge.
The common law system also uses inductive reasoning during the purpose of decided the legal
cases. And also may provide for an equitable remedy and this type of the remedy is the one
which is not fair. This system of law decreases the status of the lawyers to be prime
interrogators, where as the judges are regarded as the creators of the system of the law in the
system.
One more advantage when it comes to law according to the common law system the judges are
taken from the plasticising lawyers itself while in the civil law the lawyers are trained before
they enter this field of law as a judge. Advantage of the common law here is that, as it chooses
the judges from amongst the lawyers, they will have proper understanding of the working of the
courts.
Under the common law system when a court decides and reports its decision concerning a
particular case, the case becomes the part of the body of the law and can be used in later cases
involving similar matters. This use of precedents is known as Stare Decisis9.

8 John Indermaur, Principles of the Common Law, 6th edition, Wm. S. Hein Publishing co., New York ,1997.
9This means Stand by the decided matter.

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Examining both the systems it is quite evident that these systems though existed as two different
compartments of study, they have both contributed to each other there various elements and the
similarities between these both cannot be ignored.
The civil law system has borrowed various elements from the common law system, such as law
of Torts and Law of Contract which will be further explained in detailed. Moreover, even the
civil law elements in common law systems and their similarities between both these great legal
systems have been discussed in the further chapters.

CHAPTER 3

CIVIL LAW ELEMENTS IN COMMON LAW SYSTEM

3.1. Restitution
Much of the modern law of restitution resembles the civil law principles of quasi-contract found
for centuries in Scottish civil law. The revival or creation of restitution in England intrigues
civilians, particularly in codal countries. The law of restitution therefore developed mainly
through the action “indebitatus assumpsit” under the implied contract theory.10

3.2. Negligence - Delict - The General Tort of Negligence

Before Donohue v. Stevenson,11 there was no general duty of care at common law. There were
many tort causes of actions, and the tort of negligence covered only certain special duties.
Civil law, on the whole, always recognized the general obligation not to act unreasonably in
situations not governed by contract.
Donohue v. Stevenson12 created, amongst the special duties of care already sanctioned by the
action in negligence, a general duty of care similar to that of civil law: “you must take
reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to
injure somebody’s neighbour”13 ,being “persons who are so closely and directly affected by

10 Lord Goff Chieveley & G. Jones, The Law of Restitution, 4 Ed., Sweet & Maxwell, London, 1993 at p. 5
11 [1932] A.C. 562 (H.L.).
12 Ibid.
13 Id., p. 580, per Lord Atkin

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one’s act that one ought reasonably to have them in contemplation as being so affected when
one is directing his mind to the acts or omissions which are called in question”14

3.3. Foreseeable Contractual Damages

In civil law, it is not sufficient that contractual damages be the immediate and direct
consequence of the non-performance, but, they must have been foreseen or foreseeable at the
time that the obligation was contracted unless there is intentional or gross fault.
In 1854, Hadley v. Baxendale15 citing Pothier, the French authority, the court adopted the rule
that, besides those damages arising naturally from the breach, consequential damages include
such damage as “may reasonably supposed to have been in the contemplation of both parties, at
the time they made the contract, as the probable result of the breach of it”, if there are special
circumstances, they must be communicated and thus known to both parties.

3.4. Pre-Judgment Interests

In civil law, the general principle of restitutio in integrum says that pre-judgment interests be
granted as a loss of profit. Interest is even payable as of right when the debtor has delayed in
performing an obligation to pay a sum of money, and is calculated from the date the obligation
was due.
Pre-judgment interests were gradually awarded in common law. Lord Tenterden’s Act opened
the door slightly in 1833 - the Court was granted discretion to award interest for debts of sums
of money. The Law Reform (Miscellaneous Provisions) Act, 1937,16 at sect. 3, and later sect.
35A of the Supreme Court Act 1981, finally confirmed the discretionary powers of the courts to
award interest “at such rate as it.

3.5. Contributory Negligence

While at common law contributory negligence has always been a complete bar to an action in
tort, civil law has always dealt with this issue as a mere question of causation, thereby
apportioning liability according to the gravity of the concurrent faults. Moreover, the common

14 Ibid.
15 (1854) 9 Ex. 341; 156 E.R. 145.
16 U.K., 24 & 25 Geo. 5, c. 41.

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law developed the “last opportunity rule” (known as the “the last clear chance rule” in the U.S.)
in order to avoid triggering the contributory negligence rule against an otherwise faulty
claimant.
By way of statute, most common law jurisdictions have now limited, if not abolished, the
contributory negligence rule, and adopted the more equitable “proportionate fault” (comparative
fault) rule. Common law and civil law define marine insurance in different terms. Common law
17

speaks of an unCivil law is concerned instead with the guarantee of “risks in respect of a maritime
operation” dertaking to indemnify “marine losses, that is to say, the losses incident to marine
adventure”18 . Despite this different wording, however, common law marine policies cover risk
interests as well as property rights.

3.6. Differences in the Two Systems

The influence of the Corpus Juris Civilis on the civil-law system has been significant and
abiding, while its influence on the structure of the common law has been modest. The Corpus
Juris Civilis furnished many of the substantive rules of law contained in the forerunners of the
major legal codes of European countries. Undoubtedly the Corpus also influenced the
development of at least some of the common-law rules and principles.

17 The Law Reform (Contributory Negligence) Act, 1945, U.K.

18 James G. Apple, A Primer on the Civil-Law System, Federal Judicial Center, Washington DC, 1995, p.23.

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CHAPTER 4
SOCIALIST LEGAL SYSTEM

I.1. Introduction

In the early 1990s, the world saw the end of the old Soviet empire and the dismantling of the
Berlin wall which had separated west from East Germany. It was thought by some at that time
that this might well have signaled the end of communism practiced in countries like the old
USSR, in time, the People’s Republic of China and Cuba would follow the suit. However, the
latter eventualities have not yet transpired so there is still some value in examining the socialist
approach to law, not least, because of the constitutional crisis in 1993 and events between 1998
and 1999 suggested that the new Russian federation might even revert to its old form because of
the highly volatile nature of its leader president Yeltsin, and its many economic problems.

I.2. The Socialist System And Russia

The system of law that existed in the former Union of Soviet Socialist Republics (USSR) was
the law that governed the world’s second superpower and served as the communist system’s
prototype. In Europe today, the socialist legal system appears to have tailspun into terminal

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decline and is no longer the dominant and equal parter with civil law and common law parent
legal families. Instead, it has been progressively relegated to the role of historical anachronism
in most of Eastern Europe, becoming an example of just another legal system. As a result of the
events of the past five years in Eastern Europe and the former Soviet Union, it is arguable that
many former socialist countries will return to their civil law roots, but if they retain some of
their former ideology, or are ‘converted’ to capitalism and adopt western style laws, they will
certainly become ‘hybrid systems’ of law. If it is a combination of civil and quasi-military law,
this will not conform to the classical notion of a hybrid system because, although the traditional
conception of a hybrid legal system is one in which both common law and civil types of law can
be found, but which operate in different contexts and spheres.

The present section traces the typical features of the socialist legal system and key characterized
that distinguished it from being regarded as a civil law system. This is followed by a very brief
inquest on the former USSR before examining some of the decrees that have already emanated
from the regime under President Yeltsin, and the reforms affected by the 1993 Constitution of
the Russian Federation. At the end of this Federation into a viable of civil society and social
democracy.

I.3. The Socialist Concept of Law

The word ‘socialist’ when used in connection with the law, means many different things to legal
specialists. At its most basic, it signifies a philosophy and ideology which is based on what is
commonly referred to as the ‘Marxist-Leninist’ school of thought. The socialist ideology is
predicated on the principles, inter alia, that all law and civil law traditions reflect a capitalist,
bourgeois, imperialistic, exploitative society, economy and government. Marxist theory is
founded on the doctrine of ‘dialectical/historical materialism’ which argues that a society goes
through various stages or phases in the course of its evolution and development. It might begin
with no legal system, then become a slave owning one, followed by a stage of medieval
feudalism, before moving on to capitalism, then socialism, before law finally ‘withers away’ in a

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classless society with no necessity of any legal system, because all men treat each other as
equals.

Szabo believes that the socialist concept of law ‘may be considered as a part of homogeneous
scientific theory with a particular aim’. That aim, of course, is the creation of the new legal
system – socialist law. Basically, socialist law is the law of countries whose governments
officially view the country as being either socialist or moving from capitalism to socialism, and
which hold a communist society as an ultimate goal. In the same way, socialism can be defined
as a norm in society where private property in the form of capital has been eliminated and
replaced by common ownership of the means of production thereby permitting a large measure
of equality and fraternity in social relation. It is incorrect to believe that an ideal socialist society
would have no need of law. The left wing thought that long espoused the view that law will
wither away under socialism, which was a view developed by Marx and Engels. It is also a view
taken on the nature of socialist legality. The classical doctrine of Marxism is that law and state
are determined by, and subservient to the economic structure of society and the political and
economic aims of the State, as revealed in the State Plan. Marxist-Leninist theory extols the
primacy of economic relations in society, which takes precedence over politics and law. On the
domestic front, Stalinism could be described as one party rule comprising central planning and
State ownership of the means of production. In international terms, it meant isolation from the
West, occasionally leavened with selective interactions with foreign communist parties.

Law, when used by Soviet leaders, has therefore been a mere tool in the planning and organizing
of the economic and social structure of the country. It is simply part of the ideological
superstructure which controls the material reality of the means of production; it is determined
and defined in the terms of its political function.

The group of countries that have received socialist law may be divided into two main categories:

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(a) The older socialist jurisdictions, such as Poland, Bulgaria, Hungary, Czechoslovakia,
Romania, Albania, The People’s Republic of China, The People’s Republic of Vietnam,
the Peoples Democratic Republic of Korea, Mongolia and Cuba.
(b) The newer or nascent socialist legal systems, such as the democratic republic of
Kampuchea, Laos, Mozambique, Angola, Somalia, Libya, Ethiopia, Guinea and Guyana.
The communist party is the only real governing and planning body within the socialist legal
system. Once it decides a particular policy, it communicates its plans to all its constituent
organs and this policy will be carried out by its legislative, executive and judicial agencies.

I.1. Similarities between Civil Law and Socialist Systems

There are many similarities between the civil law and the socialist legal system. Quigley, a
political thinker mentions the inquisitorial style of trial codes and the passing of legislation,
decision of law into its civil law categories and the method of investigation of crime is
different from the socialist legal systems that have utilized civil law institutions,
methodology and organization. Indeed, he argues that despite significant differences
between civil law and socialist law, when one looks at soviet or socialist laws from a global
prospective, these differences do not erase the basic identity of socialist law as part of the
civil law tradition. He maintains that it is impossible to understand socialist law without
viewing it within the tradition of which it is a part. He concludes that the points of
differences between the two systems have not removed socialist laws from civil law tradition
and “to think otherwise is to overlook the historical connection of socialist law to civil law
and the continuing relevance in socialist law of civil law rules, methods, institutions and
procedures.”

I.2. Differences between Civil Law and Socialist Systems

The majority of western scholars have argued that a socialist law forms a family of law
separate from civil law family. However, many scholars belonged to the school of thought

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that believed that socialist law is simply a member of the civil law group. Quigley holds that
the two families have differentiating features which are summarized below.

(a) Socialist law is programmed to wither away with the disappearance of private property
and social classes and the transient to the communistic social order;
(b) Socialist countries are dominated by a single political party;
(c) In socialist system law is subordinated to creation of a new economic order wherein
private law is absorbed by public law;
(d) Socialist law has a pseudo-religious character;
(e) Socialist law is prerogative instead of normative.

I.1. Inquest on the Russian Empire

The empire in Russia really began in 1552, when Tsar Ivan IV ordained the building of the
Cathedral of the Annunciation in Kazan to celebrate his victory over Tartars. This was to mark
the movement when Muscovy first conquered infidel Territory and imposed its rule over non-
Slav people. In the intervening years, the Russian Empire has been the largest in the history of
the world and outstripped the British Empire in terms of sheer longevity. The Empire was
unusual in that it made no clear distinction between metropolis and colonies. The colonized
territories were not overseas, but all adjacent to or encircling the heartlands. Russians found it
natural to resettle there as if they were simply moving into another region of their home
territory.
Thus, until recently, Russians readily accepted the right of all citizens to move freely and live in
different parts of the country. But, Russia continued to assert its control over the Eurasian
expanses because of fear of subjection to some other power. The cost of defending and
administering a huge and diversity has exacted its toll, and the price paid by the Russian people
has been despotism, serfdom, heavy taxation and an oversized bureaucracy.

Alexander II (1855-81_ attempted to create the institutions of civil society by abolishing

serfdom and setting up elective government assemblies, the beginnings of land reform, reforms

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in local administration, a hierarchy of law courts and a citizen army based on adult male
conscription. During his ‘period of reforms’, judges were made independent of the
administrative wing of the government for the first time.

Nicholas II then established an elected Parliament. But, the Russian people created institutions
of their own, such as the soviets of workers’, soldiers’ and peasants’ deputies, modeled on the
village community. It was those soviets which, in 1917, seized power to the State which
emerged from the ruins of imperial Russia.

Under the communists, the Empire acquired a fresh start and renewed vigor, but the new era was
short lived. Although Lenin and Stalin managed to turn the empire into the second mightiest
State in the world, this had its price. While encouraging mass literacy in the numerous
vernacular languages of the Soviet Union and creating vitality sovereign state structure for even
small ethnic groups, all state were tight controlled and severely restricted by the ethos of the
planned economy and the centralized power, and the overweening influence of the one party rule
of the communist party.

Thus, even small doses of glasnost (opening up Russian society) were enough to cause a stir and
upset the odd balance of national fervor and repression of individual liberty that is typical of
Russian society. Gorbachev’s other innovation –perestorika- the restructuring of soviet society,
may have filed during his short presidential reign, but surely he has blazed a trail for others, the
democratic and privatizing aspects of which Yeltsin and his successors will surely endeavor to
pursue.

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CHAPTER - 5
RELIGIOUS LEGAL SYSTEMS
5.1. Introduction
Religious law emanates from the sacred texts of religious traditions and in most cases purports
to cover all aspects of life as a seamless part of devotional obligations to a transcendent,
imminent, or deep philosophical reality, either personal or cosmological. Religion for law must
be defined broadly but its truth value need not and ought not to be addressed 19. Most religious
law gradually came to apply in its most institutional form to its own organizations and to
familial or contractual matters. Application to ritual is a gray area but generally excluded from
discussion and classification.

From the viewpoint of application of a particular branch of law upon persons, laws may be
either territorial or personal. A territorial law is that branch of law which is applied in a
particular territory and is applicable upon persons of all communities living in that territory.
Thus, the Indian Penal Code or the Indian Contract Act is examples of territorial laws, because
the Indian Penal Code or the Indian Contract Act applies upon all the persons living in India. On
the other hand, a personal law is that branch of civil law which applies upon the persons of a
particular religious community20.

Thus, the Mohammedan Law applies upon the Muslims and the Hindu Law applies upon the
Hindus. At present some of the main provisions of Hindu Law have been codified. The codified
Acts are the Hindu Succession Act, 1956, Hindu Marriage Act, 1955, Hindu Minority and
Guardianship Act, 1956 and the Hindu Adoption and Maintenance Act, 1956. Parsis and
Christians are also governed by separate Acts, which are, Parsi Marriage and Divorce Act, 1936;
Indian Christians Marriage Act, 1872; Indian Succession Act, 1925. Apart from these Acts, there

19Available at www.nyulawglobal.org, last retrieved on 19 April 2010.

20 Ahmad Aqil and I.A. khan, Mohammedan Law, Central Law Agency, Allahabad, 22nd edition,2006, Pg(1)

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is an Act, the Special Marriage Act, 1954. The Special Marriage Act, 1954 is applicable to all
Indians who have decided to marry under this Act irrespective of their different religion.

It is clear that in areas of private law such as family law, inheritance, and in come commercial
transactions, several religious systems influence secular law or are incorporated as a regime
which may or must be applied in those areas or to members of certain religious communities. As
sources for legal research in these areas are inter-disciplinary and often less known in the world
of legal research, an overview of the major world systems, and where and how they are
implemented, is offered.

5.2.Classification of Religious Legal System

5.2.1 Islamic Law
5.2.2 Jewish law
5.2.3. Canon Law.
5.2.4. The Catholic Church and Modern Canon Law
5.2.5. Hindu Law

5.1.1. ISLAMIC LAW OR SHARI’AH LAW

Muslim Law in India means “that portion of Islamic Civil Law which is applied to
Muslims as a personal Law” (Fyzee). It consists of the injunctions of Quran, of the
traditions introduced by the ‘practice’ of the Prophet (Sunna), of the common opinion
of the jurists (Ijma), of the analogical deductions of these three (Qiyas), and of the
pre-Islamic customs not abrogated by the Prophet Mohammad. Further, it has been
supplemented by the juristic preference (Istihsan), public policy (Istislah), precedents
(Taqlid) and independent interpretation (Ijtihad)21. It has been further supplemented
and modified by State Legislation and modern judicial precedents of the High Courts
and the Supreme Court of India and also of the Privy Council. Islamic law might
refer to all the law and jurisprudence of Islam and includes,

21 Diwan Paras, Muslim law in modern India, Allahabad law agency, Faridabad(Haryana), 9th edition,2004, Pg 31.

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The primary sources of Muslim law are:22

•The Qur'an and

•The Sunnah (ways of life of Prophet Muhammad, the last prophet of Islam),
•Ijma
•Qiyas

While the principles and injunctions of the Shari'ah are infallible and not subject to
amendment, fiqh-based standards may change according to the circumstances.

Four methods, often called sources of law by Muslim writers, for deducing and
establishing fiqh-based law are universally recognized by Islamic jurists:

• The extraction of Qur'anic injunctions and the principles based on the

interpretations of it are considered to be law. The Quran was compiled by third
caliph23.
• The application of the principles reflected through the Hadith of Prophet
Muhammad.
• The consensus of opinion from among the companions of Muhammad and\or the
learned scholars (Ijma) can be considered to be law. Ijma means a kind of
Communal legislation. Ijma cannot be replaced.
• Analogical deduction (qiyas). .

Nineteen schools of fiqh (fiqh madhhabs) developed during the first four centuries
of Islam. By the fall of Baghdad the number of major madhhabs had dwindled to
five (four sunni and one shia). At present, the four major schools of fiqh among the
sunni Muslims are24:

• Hanafi
• Maliki

22 Id 3.
23 Myneni Dr.S.R, legal systems in the world, Asia Law house, Hyderabad, 1st edition,2007, Pg 258.
24 Diwan Paras, Muslim law in modern India, Allahabad law agency, Faridabad (Haryana), 9th edition, 2004, Pg
22.

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• Shafi'i
• Hanbali

Judges also use individual judgment and reasoning, known as ijtihad (can include
reasoning from analogy), but greatly varying over time. The positive laws of
Muslim countries are not Muslim laws25. Saudi Arabia, Sudan, and Iran stand alone
as those countries that fully recognize the Shari'ah as the official law of the land.
Qatar, the two Yemens, Kuwait and Bahrain also acknowledge Shari'ah principles
but to a lesser degree. All other legal systems in the Muslim world are hybrids of
Islamic and European land."

Conception of Muslim Law: -There are mainly two different conceptions of law,
one of divine origin as is the case with the Hindu law, Islamic law etc. and another
man-made. Muslim law is founded upon revelation and is blend with religion. There
is in Islam, a doctrine of ‘Certitude’ (ilm-ul-yaqin) in the matter of Good and Evil.
Human beings due to their weakness cannot understand what is good and evil,
unless in the matter they are guided by the inspired Prophet. What is morally
beautiful, that must be done, and what is morally ugly must not be done. That is law
of Shariat and nothing else can be law. This is the view of Muslim jurists, in the
words of Abdul Rahim, Law (Hukum) is that which is established by a
communication from God with reference to men’s acts expressive either of demand
or indifference on his part or being merely declaratory. There are certain important
questions. These questions cannot be answered by human beings. The answer of
these questions is given in the Quran and in the Hadith. If there is nothing either in
the Quran or in the Hadith to answer a particular question then the dictates of
secular reason has to be observed.

Shariat is law in the wider sense26. It means the totality of Allah’s commandment.
Each one of such commandments is called hukum. It is a doctrine of duties. Legal

25 Myneni S.R, legal systems in the world, Asia Law house, Hyderabad, 1st edition,2007, Pg 268.
26 Ibid 6, 3.

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considerations and individual rights have secondary place in it. Shariat says that
religious injunctions are of five kinds, al-ahkarn allkhamsa. Those strictly enjoined
are farz and those strictly forbidden are haram. There are two more categories which
a Muslim is advised to do and things which a Muslim is advised to refrain (makruh)
and finally there are things about which religion is indifferent. Thus the shariat is
totalitarian; a human activity is embraced in its sovereign domain.

5.1.1. JEWISH LAW

"Jewish law is the legal system of the Jewish people as it has developed from
Biblical times to the present." - Phyllis Weisbrod

Torah is the term used for the divine source of wisdom relating to all of creation, so
to work towards a definition that relates to the narrower scope of its application as
law, or halakhah, begins with the Torah in a more literal sense, namely, the first five
books of what the Christian western tradition calls the Pentateuch or first five books
of what came to be the Bible27. An oral history of commentary on the Torah arose
and became written down as the Mishnah in approximately the year 200. Talmud
and Torah also contain non-legal teachings bound up with legend, myth and
philosophy.

Learned opinions based on this addition to the divine tradition were recorded as a
commentary on the Mishnah and became known as the Talmud or "study28." The
Jerusalem Talmud (or Gemarah in Aramaic) dates from the fifth century after Christ
and approximately 100 years later there appeared the Babylonian Talmud, a more
authoritative text. Other sources of the "oral" law include the Tosefta and the
Midrashe Halakhah. After the fall of the Second Temple in 70 and the ending of the
assembly of elders known as the Sanhedrin, interpretation fell to the institution of a
bet din or rabbinical court of three rabbis. Such a court continued through the
Diasporas wherever there was a Jewish population. There is no appeal or stare

27Available at www.nyulawglobal.org, last retrieved on 24 April 2010.

28 Ibid 7, 3.

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daisies; one can ask the court to correct an erroneous judgment or re-open a criminal
case. The tradition is much closer to that of the European civil law in that regard.

Codes of restatement also appeared over time; the codes of Moses Maimonides in
the 12th century and of Joseph Karo in the 16th century are considered authoritative.
As those rabbis learned in the law applied it in opinions, these became written down
as answers and advice known as response, and these constitute a living law.

Jewish law is now applied in personal law (such as marriage and family) in Israel
and Morocco and others which recognize such applications to religious communities
in several jurisdictions29.

5.1.2. CHRISTIAN CANON LAW (ROMAN CATHOLIC CHURCH)

The canon law of the Roman Catholic Church began to develop alongside Roman
law and indigenous law in Europe after the end of the Roman Empire and the retreat
of ancient Roman law. Gradually canon law and its Roman law elements would
develop into a body of law that could challenge emerging monarchies to develop a
coherent national law or the civil law code tradition of secular law in most of
Europe today.

Canon law is the body of laws and regulations made by or adopted by ecclesiastical
authority, for the government of the Christian organization and its members. But the
expression "canon law" (jus canonicum) becomes current only about the beginning
of the twelfth century, being used in contrast with the "civil law" (jus civile), and
later we have the "Corpus juris canonici", as we have the "Corpus juris Civilis".
Canon law is also called "ecclesiastical law" (jus ecclesiasticum); however, strictly
speaking, there is a slight difference of meaning between the two expressions: canon
law denotes in particular the law of the "Corpus Juris", including the regulations
borrowed from Roman law; whereas ecclesiastical law refers to all laws made by the

29 Ibid 7, 3.

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ecclesiastical authorities as such, including those made after the compiling of the
"Corpus Juris".

By the twelfth century the mass of laws or canons were systematized and
rationalized by canonist Gratian in the "decrials" or Concordance of Discordant
Canons near the same time as the revived study of ancient Roman law began at the
university at Bologna, but further work was done to create the decrials of Pope
Gregory IX in 1234 and so by the end of the 13th century, the Corpus Iurus Canonici
consisted of the following texts:

(1) The "Decretals"

(2) Those of Boniface
(3) Those of Clement the collections which at that time, with the "Decree" of Gratian, were
taught and explained at the university.

Ecumenical councils of the church, the Pope and Apostolic Letters such as bulls or
briefs, decrees of the Roman Curia or Acts of the Holy See also form part of canon
law. The Roman Curia or departments of the Holy See consist of Roman
Congregations, the tribunals, and the offices of Curia.

The Tribunals consist of the Sacred Penitentiaria, the Sacred Roman Rota, and the
Apostolic Signatura. The Sacred Roman Rota consists of auditors who hear
contentious cases and are doctors of canon law and theology. They take appeals
from the episcopal tribunals of first instance or may be of the first instance for some
matters. Cases may be criminal or regarding ordination or matrimony, involving a
defender of the bond (of marriage). Advisory opinions may be requested as well.
Conclusions of the court must be accompanied by reasons30.

A common type of case in canon law relates to requests to grant an annulment of

marriage after a civil divorce, since the doctrine of the Roman Catholic Church does
not recognize divorce. It is a matter of controversy as to whether there have been in

30 Ibid 7, 3.

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fact ecclesiastical "divorces" for influential persons or under experimental canons

used in the United States before the latest Code of Canon Law, promulgated in 1983
(and as amended by Pope John Paul II in Ad tuendam fidem, apostolic letter motu
proprio) but no Catholic theologian or canon lawyer would ever admit to such. The
annulment concept came into secular law to void forced marriages and in several
other instances, and in both religious and secular arenas, the court declares that no
marriage ever existed and so it cannot be dissolved.

5.1.1. HINDU LAW

From an ancient time, 2000-1500 B.C., the Vedic literature existed, and while they
inform a tradition of gods they point to the concept of the One as interpreted by the
Brahmans, these teachers also used the sutras or memorized books (like textbooks)
of law or dharma (in one of its meanings; closer to "way of life").

Manu was son of Brahma31.The Laws of Manu, a mythical author, of circa 200 B.C.
shows the beginnings of the legal tradition of great variety although his focus was
family, property, and succession law. This early Sanskrit literature was replaced
gradually in the colonial period when the British substituted their own translations
and understanding in place of what came before; Anglo-Indian law preserved family
law areas (five elements of family law - marriage, child marriage, polygamy,
divorce, and maintenance) as Hindu personal law and replaced the rest with colonial
British law. It was a judge made law. The Hindu Code of independence became one
among other personal codes and preserved much of the British innovation.
7
Dharmasutras were mostly written in prose. It dealt with the duties of men in their
various relations. Custom and local tradition could prevail over sacred texts even in
the time of classical Indian law. According to the Laws of Manu, the sources of
dharma are:

1) The Vedas,

31 Menski Werner F., Hindu Law Beyond Tradition and Modernity, Oxford University Press, New York, 1 st
edition, 2003, Pg 8.

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2) Tradition, especially as set forth in treatises like Dharmashastras,

3) Customary laws created by local or regional communities

4) Personal preference.

5) Equity, Justice and Good conscience32

6) Precedent33

7) Legislation34

5.1.2. BUDDHIST LAW AND LEGAL THEORY

Tibet 1940-1959, is the most illustrative jurisdiction for an examination of what

followers of the Buddha in an authentic Buddhist culture regard as the source of
laws and rules that govern a monastically inclined community as well as
householders' obligations.

There are five major sources for Tibetan legal concepts:

(1) Religious source material such as the Vinaya which is a canonical text
outlining the rules for the monks to follow as Buddha spoke them case by
case.
(2) Extant official documents which include administrative law books, edicts,
decision documents, treatises, government contracts, estate record books, tax
records and deeds to land35.
(3) Documents issued by non-governmental institutions such as monastic
constitutions, private leases and private contract documents.
(4) Law codes.
(5) Written and oral statements describing the legal system.

32 Diwan Paras, Modern Hindu Law, Allahabad law agency, Faridabad (Haryana), 17th edition, 2006, Pg 51.
33Ibid 13, 7.
34Ibid 14, 7.
35Available at www.nyulawglobal.org, last retrieved on 20 April 2010.

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Dhammasattha is the Pali term for the genre of legal literature which may be
examined in relationship to householders and communities or sanghas used by
such communities in Laos, Myanmar (Burma) and Thailand and this literature
probably dates from the first millennium. Courts of law in colonial times used
"Acts of Truth" in Sri Lanka's Sinhala Buddhist community for proof in judicial
proceedings. These were oaths taken upon consequences to be observed as
between truth-tellers and others36. In Thailand, legal proceedings that replace
informal "injury narratives" in tort cases (or events which may or may not result in
a case) appear less effective in resolution of claims than the traditional methods
under Buddhist obligation. These exercises in legal history and anthropology bear
on modern developments in criminal law and restorative justice as well.

5.1.1. CONFUCIAN LAW AND LEGAL THEORY

China is one if the countries with the longest histories in the world. First Chinese
ruler in 221B.C.The second dynasty to the rule over China was Sui, ruled from
581 to 617 AD. Then there was the Tang dynasty from AD 618 to 907. From 907
to 960, the China passed a period of revolts, disunity and anarchy. Then Sung
ruled from 960 to 1279 and Mongols ruled from 1280 to 1368. Mao Tse-tung, the
leader of communist party won the civil war. Since 1949, China is under
governance of the communist party37. The teachings of K'ung-tzu (older form
Kong fou-tseu) known in the west as Confucius bear on the informal legal
tradition of the Chinese jurisdictions where the rite and custom of persuasive
example or li has been an alternative even within that culture to legalistic codes or
more positive law fa. Chinese were influenced by Confucius (551-479 BC).The
fundamental social unit is the family. Penal and administrative law has been more
prominent than any private law and so the influence as of other religious systems
on family law or obligations is not seen in the positive law. Confucianism is often

36 Ibid 13, 7.
37 Myneni Dr.S.R, legal systems in the world, Asia Law house, Hyderabad, 1st edition,2007, Pg(285)

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seen as a philosophy and not a religion, but it is included here as a basis for law as
a means of social control and reinforcing roles, similar in some ways to ancient
Roman law.

"The Confucian Classics are a collection of writings said to date from the late
Chou Dynasty (1122 - 221 B.C.). In accord with the Chinese cultural penchant for
enumeration, they are referred to as either the Five Classics or the Six Classics.
Some years later, certain scholars claimed to have discovered surviving copies of
the Classics which had ostensibly escaped the Ch'in burning decree texts written
using the ancient style characters of the Chou Dynasty. For a brief time, the two
rival sets of texts, the "New Texts" (chin wen) in contemporary Han Dynasty
script and the "Old Texts" (ku wen) in ancient script, vied for dominance among
Confucian scholars. By the closing years of the Han Dynasty, however, the Old
Text versions of the Classics prevailed over the New Texts38. Nevertheless, the
episode of the book-burning shaped the Confucian attitude towards the Classics,
fueling a perpetual insecurity that the canon which survived was in some way
defective or incomplete. That fear was to provide the justification for revising and
reconstructing the canon throughout Chinese history.

The contestability of the classical Confucian texts was to have dramatic political
consequences in late imperial China. During the late Ming Dynasty (1368 -
1644), a .Using sophisticated philological techniques; these scholars exposed a
number of these classical texts as forgeries39. They therefore advocated going
back to the so-called New Text versions of the Classics, which Han Dynasty
scholars had reconstructed from memory."

38Available at www.nyulawglobal.org, last retrieved on 21 April 2010.

39 Ibid 19, 9.

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CHAPTER – 6
CONCLUSION

The preceding assessment shows that neither of the described method is perfect in as absolute
sense. Rather, it depends on the context which of the style of legal system as mentioned in the
introduction should apply. For the global analysis of specific aspects or area of law, a variation
of approaches could workable. If you are only interested in how an issue is addressed in a
handful of countries, you do not really need to resort to cluster at all. Although a basic
understanding of how legal systems relate to each other is always helpful. Finally, some areas of
law need other differentiating factors (E.g. in constitutional law. There are quite different
interrelationships of legal systems). In sum, the approaches described in the introduction part,
provide a useful working basis for everyone, who is interested in Comparative law, though they
may need to be adapted for every individual case.

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Bibliography
Books Referred: -

1) Ahmad Aqil and I.A. khan, Mohammedan Law, Central Law Agency, Allahabad, 22 nd
edition,2006, Pg(1)
2) Diwan Paras, Modern Hindu Law, Allahabad law agency, Faridabad (Haryana), 17th
edition, 2006, Pg 51.
3) Diwan Paras, Muslim law in modern India, Allahabad law agency, Faridabad (Haryana),
9th edition, 2004, Pg 22.
4) Douglas Edlin, Common law Theory, 13th edition, Cambridge University Press, New
Delhi, 2007, p.1
5) John Indermaur, Principles of the Common Law, 6th edition, Wm. S. Hein Publishing co.,
New York ,1997.
6) John Merryman, The Civil Law Tradition, 10th Edition, The Stanford University Press,
London, 2007, p.6
7) Lord Goff Chieveley & G. Jones, The Law of Restitution, 4 Ed., Sweet & Maxwell,
London, 1993 at p. 5
8) Mathew Haleand & Charles Grey, The History of the Common Law of England, 4th
edition, University of Chicago Press, Chicago, 1971, p.13
9) Myneni S.R, legal systems in the world, Asia Law house, Hyderabad, 1st edition,2007,
Pg 268.
10) Peter De Cruz, Comparative Law in Changing World, 2nd Edition, Routledge, Delhi,
1999, p. 7
11) Vide Code of Shipping Law(1961), Code of Family law (1964), Code of Civil Law(1964),
Code of Civil Procedure (1964), Code of Private International Law (1964), Code of

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Administrative procedure (1960), Code of Criminal law (1969), Code of Criminal

Procedure (1969)
12)Ahmad Aqil and Khan Prof. I.A, Mohammedan Law, Central Law Agency, Allahabad,
22nd Edition 2006,
13)Diwan Paras and Diwan Peeyushi, Modern Hindu Law, Allahabad Law Agency,
Faridabad(Haryana),17th Edition2006
14)Diwan Paras and Diwan Peeyushi, Muslim Law in Modern India, Allahabad Law
Agency, Faridabad (Haryana),9th Edition2004
15)James G. Apple, A Primer on the Civil-Law System, Federal Judicial Center,
Washington DC, 1995, p.23.
16)Kulshreshtha V.D. and Gandhi B.M., Landmarks in Indian Legal and Constitutional
History, Eastern Book Company, Lucknow,8th Edition2005
17) Menski Werner F., Hindu Law Beyond Tradition and Modernity, Oxford University
Press, New York, 1st edition, 2003, Pg 8.
18) Myneni Dr.S.R, legal systems in the world, Asia Law house, Hyderabad, 1st
edition,2007, Pg 258.

19) Rene David, Traite Elementair De Droit Civil Compare (1950), modified in Rene David
& Camille Jauffret-Spinosi, Les Grands Systems De Droits Contemporains (1992).

33