Published on Sexuality, Poverty and Law (http://spl.ids.ac.uk)
Home > Sexuality and Social Justice: A Toolkit > 2. Policy and the Law: What you need to know > 2.1 How the Law Works >
2.1.1 Legal Systems
2.1.1 Legal Systems
A legal system is the philosophy of law; the procedures for making law, delegating legal authority and adjudicating legal
issues. No two countries have identical laws but as a result of colonial history large parts of the world share five main
types of legal systems: common law; civil law; customary law; religious law, as well as mixed expressions of legal
pluralism. In additions many countries have retained all or part of systems that have developed from Chinese, Arabic and
various indigenous legal traditions.
Countries with the same, or similiar, legal system can have very different laws. This is exemplified by the fact that, despite
having the same legal system, laws against homosexuality are being introduced in Uganda and Jamaica while laws to
enable gays and lesbians to marry are being passed in the UK and Canada.
To participate in law making, to challenge law, or to use it to liberate and benefit people, we need to understand the
mechanisms and institutions within the legal system as well as the actual laws within it. The following is an introductory
guide to types of legal systems and traditions that determine the mechanics of the law in particular countries.
Legal Systems of the World. Source: Wikipedia
1. Common Law: The United States and most former British colonies have a common law legal system. The foundation of
common law is 'legal precedent'. This means that courts are bound by the decisions of earlier courts of the same or equal
status in the system. Although judicial precedents are a major source of law, common law systems also rely on written
statutes and regulations. One third of the world's population (approximately 2.3 billion people) live in common law
jurisdictions [1].
2. Civil Law: The most widespread type of legal system in the world, the civil law system applies in various forms in
approximately 150 countries. Under a civil law system, most law is laid out in extensive codes and constitutions. The major
feature of civil law systems is that the laws are organised into systematic written codes. Unlike the common law systems,
civil law jurisdictions' precedents have a persuasive role but are not binding. Courts are expected to take past decisions
into account when there is a sufficient level of consistency in case law.
3. Customary Law: Customary law is a type of (typically) unwritten law governing such areas as personal relationships and
conduct. As the term implies, customary law is based upon the customs of a community so it exists where a certain legal
practice is observed and the relevant actors consider it to be law. To varying extents customary laws were incorporated
into post-colonial legal systems and serve as the basis of present-day laws in approximately 40 countries in Africa, the
Pacific Islands, Asia, Australia and Europe. Where customary law operates as a separate legal system within a subpopulation of a secular nation-state it is authorised by law, usually to apply only to Muslims within that country. More
recently, advances in the rights of indigenous people and ethnic minorities has led to recognition and reintegration of
some traditional law into contemporary legal systems.
4. Religious Law: Some legal systems are based on the sacred texts and theological scholarship of various religions. The
most well known types of religious law are halakha in Judaism and different interpretations of sharia in Islam.
Christianity, Hinduism, Buddihism and other faiths have all also generated streams of law. Canon law, which regulates the
internal ordering of the Roman Catholic Church, the Eastern Orthodox Church, and the Anglican Communion has also
been incorporated into some modern law. Few countries are governed by religious law alone. Examples include Islamic or
sharia law in Iran, the Maldives, and Saudi Arabia. In most countries, religious law operates alongside, or within, a modern
civil or common law system.
5. Mixed Legal Systems: Some countries operate under mixed expressions of legal pluralism, incorporating some or all of
the elements of the more strictly defined legal systems above. Sometimes called 'Polycentric' it means that providers of
legal systems compete or overlap in a given jurisdiction, as opposed to monopolistic statutory law according to which
there is a source of law for each jurisdiction. It can also refer to hybrids of legal systems which emerge as a result of
historically diverse communities and traditions uniting into a common legal 'jurisdication.'
For more on legal systems see Bernard Rudden: Legal Systems, Profusion and Variety [2].
For a list of the legal systems of each country see the CIA World Factbook [3]
Click here to read about the Kris-Romani legal system
The Kris-Romani system is an example of a traditional system for conflict resolution in the culture of the Vlax branch of
the Romani people and it applies to issues involving only Romani parties. Elected Romani judges are typically educated
elders who are respected in their community and have good relations with the non-Roma, and while they cannot issue
judgements on public law, they do handle mediations in criminal cases and often are called on to intervene in family
disputes. A court called a 'kris' imposes punishment according to the seriousness of offenses they judge, and
responsibility to pay a kris-imposed fine falls collectively on the wrongdoer's family.
Source: Source Claude Cahn Nexus: domestic violence, Romani courts and recognition 12 April 2000
http://www.errc.org/cikk.php?cikk=644 [4]
Legal Systems of Different Regions
Europe
The Law of the European Union (EU) or Community Law is a new and unique legal system that operates in tandem with
the laws of the 27 member states of the EU. The European Court of Justice (ECJ), established in 1952 has been largely
responsible for the development of EU law. The EU is a union of member states, and all of its authorities are voluntarily
granted by its members. The European Court of Human Rights is unique in that citizens of the EU can take cases against
their government to the Court. This gives rise to the potential for European Courts to effectively make law that applies in
the Member States. This is controversial given the sensitivity of many of the topics, including sexuality.
For more information see the European Court of Human Rights website [5]
Africa
Law in Africa has been shaped primarily by 19th century colonialism. This means that the primary sources of the law in
Francophone and Anglophone countries are French and English, while some countries have a mix of legal influences,
such as South Africa which draws on both Dutch and English legal traditions. Some of the oldest legal systems began first
in Africa and elements of them remain present in contemporary systems in, for example, Egypt (Ma'at); Somalia (Xeer), and
Ethiopia (Fetha Nagast).
Click here to read about traditional law in Somalia
Xeer is a polycentric legal system that exists until today in Somalia. Under this system, elders serve as judges and help
mediate cases using precedents. In line with the Somali nation being a traditionally stateless society no authority dictates
the law. Xeer law and, consequently, crime are defined in terms of property rights. Because violations of property rights
requires compensation, rather than punishment, there is no imprisonment, and fines are rare and are payable to victims
not to courts or a government.
There is no victimless crime because only victims or their families can initiate cases. Every person must be fully insured
against any liability he might incur under the law. If an individual cannot make the required payment, a designated group
of his kin is responsible. There is no monopoly of police or judicial services. Anyone is free to serve in those capacities as
long as he is not at the same time a religious or political dignitary, since that would compromise the sharp separation of
law, politics, and religion. Every Somali has the head of his extended family nominated at birth to be his own judge that
will sit on any court that judges him should he transgress the law throughout his life. According to some scholars Xeer
developed in the Horn of Africa without external influence and it takes its place alongside the Roman, Jewish and English
that are considered to be the great legal systems of the world.
Source: Van Notten, M. (2005) The Law of the Somalis: A Stable Foundation for Economic and Social Development in the Horn of
Africa. Trenton, NJ: Red Sea Press; and The Rule of Law without the State
Asia
The legal codes of Asia have been shaped by a combination of European common and civil law. The German Civil Code has
been highly influential in the region influencing law in China, Japan and South Korea. Traditional philosophies and rules
systems contained in sacred texts have also played an important role. These include the Sanskrit Dharmaśāstra that was
taken by British colonial administrators to be the law of India and Chinese Legalist and Confucian traditions of social
order and governance. In some countries, such as Bhutan, Buddhist religious law applies while communist legal theory
plays a role in the law of China as well as smaller countries such as Cambodia, Laos, Vietnam and North Korea.
Latin America and the Caribbean
The legal systems of Latin America are unified in that all countries follow civil law systems inherited from Spain and
Portugal. Caribbean countries are mainly former British colonies and remain members of the British Commonwealth, but
there are some Spanish and French juristictions. In some parts of Latin America there are new trends in constitutional
drafting that recognize indigenous expressions of legal systems (as in the case of Bolivia and Ecuador.) In 2008 most
countries in the region signed a Treaty of The Union of South American Nations that is similar to the European Union.
Click here to read about British Anti Gay Law in the Caribbean
The British legal system was exported to the Caribbean and remains in all of the Commonwealth Caribbean countries.
With the exception of the Bahamas they all continue to criminalise gay and transgender communities under laws such as
the 1861 Offences Against the Person Act. This persists despite this law having being removed in Britain and despite most
of those countries having signed key international treaties including the Inter American Charter of Human Rights that
seek to ensure that all people are viewed equally before the law.
http://www.humanrightsinitiative.org/london/lgbt_rights/caribbean.pdf [6]
Jamaica
The organization AIDS-Free World has presented the first-ever legal challenge to the country’s anti-gay laws. Represented
by a expert legal team, AIDS-Free World submitted a petition at the Inter-American Commission on Human Rights (IACHR).
They argue that by criminalizing homosexuality, Jamaica - which is a signatory to the American Convention on Human
Rights - is in violation of international human rights laws.
Source URL: http://spl.ids.ac.uk/sexuality-and-social-justice-toolkit/2-policy-and-law-what-you-need-know/21-how-lawworks/211-legal
Links
[1] http://spl.ids.ac.uk/sexuality-and-social-justice-toolkit/about-toolkit/glossary#jurisdictions
[2] http://www.law.cornell.edu/wex/legal_systems
[3] https://www.cia.gov/library/publications/the-world-factbook/
[4] http://www.errc.org/cikk.php?cikk=644
[5] http://www.echr.coe.int/Pages/home.aspx?p=home
[6] http://www.humanrightsinitiative.org/london/lgbt_rights/caribbean.pdf