LEGAL SYSTEMS COMPARISON 2
Legal Systems Identification and Background
Legal traditions and systems have shaped our world in significant ways. The depth of this
impact should be examined by adopting a clear understanding of the meaning behind the legal
tradition term. A legal tradition is defined as “a set of deeply rooted, historically conditioned
attitudes about the nature and role of law, about the organization and operations of a legal
system, and about how the law is or should be made, applied, studied, perfected, and taught.”
John Henry Merryman, The civil law tradition. An introduction to the legal systems of Europe
and Latin America 67 (1985). Legal traditions function as the primary driver when relating legal
systems to the respective cultural viewpoints. Oana-Andreea Pirnuta & Alina-Adriana
Arseni,=Common law and civil law: The major traditions of the western legal culture=68 (Review
of the Air Force Academy, 2010).=The most common legal traditions include civil, Islamic,
common, and the indigenous. Id. Legal traditions such as civil, Islamic, and common are not
static and possess specific characteristics such as reliance on religious origins, a degree of
formalism, and inclusion of major concepts and procedures. Morr Link & Yoram Z. Haftel,
Islamic legal tradition and the choice of investment arbitration forums 561 (Review of
International Political Economy, 2021). Islamic legal tradition is considered the least formal.
Civil legal tradition is the most influential in the world, with the highest degree of formalism. Id.
Law can be viewed as a tradition passed between generations with significant changes that can
occur over time, and possess growth identified as continuous. Jan Smits, Is law a parasite? An
evolutionary explanation of differences among legal traditions 791 (Review of Law and
Economics, 2010). Despite these differences, the U.S. legal system has uniquely combined the
use of both systems in legal areas such as the country’s founding documents. A key point of
importance is the U.S. is commonly defined as being comprised of a common law legal system.
LEGAL SYSTEMS COMPARISON 3
Nonetheless, the U.S. can incorporate other key principles of legal systems outside of common
law. The “constructive combination of elements of both civil and common law” is represented in
U.S. Law. H. Patrick Glenn,=Legal Traditions of the World 265(5th ed. 2014).
Benefits and Challenges of Common Law
The U.S. legal system is commonly defined as being comprised of a common law legal
system. The “constructive combination of elements of both civil and common law” is
represented in U.S. Law. H. Patrick Glenn,=Legal Traditions of the World 265(5th ed. 2014).
Common law relies heavily on written judicial decisions and refers to “the legal rights, duties,
powers, prohibitions, and remedies derived exclusively from published caselaw – decisions of
common law courts in the United States and England.” J. Lyn Entrikin, The death of common
law 363 (Harvard Journal of Law & Public Policy, 2019). The legal system promotes security
and uniformity since it is understood outcomes are solely based on previous case law. Outcomes
will therefore not be based on personal viewpoints.
Common law originated in England and had a heavy reliance on oral argumentation
versus the more traditional written procedure of rules. Sara McLaughlin Mitchell et al., Domestic
legal traditions and states’ human rights practices 191 (Journal of Peace Research, 2013).
English judges became obligated by the actions of former judgements. The spread of common
law resulted in many British colonies practicing this form of law. A benefit of common law is its
focus on the state protection of individual rights as opposed to the state functioning as the
supreme authority represented in civil law. Id at 192. Common law also has a certain level of
amenability due to the acknowledgement of societal changes that do not need to be present in
codes and statutes. The need for lawmakers to push changes could take a lengthy amount of time.
One significant challenge of common law is past decisions can become extremely dated and
LEGAL SYSTEMS COMPARISON 4
unfair but are continually used to guide future rulings. The creation of new standards can be
driven by societal responses to nullify these past rulings, especially when the impact is on certain
cultural groups. The consideration of common law marriage can also pose a challenge since there
are no indissoluble terms that would be recognized by the court in the case of separation or
dissolvement of the relationship.
Benefits and Challenges of Civil Law
The civil legal tradition is categorized as one of the major legal traditions with
progression as jurists in Rome supplied advice (responsa) on cases and disputes occurring
between its citizens. Sara McLaughlin Mitchell et al., Domestic legal traditions and states’
human rights practices 191 (Journal of Peace Research, 2013). Responsa is a form of law that
began appearing in scholarly analysis and legal rulings with the codification of Roman law
occurring in the eastern areas after the Roman Empire split. Id. As a result, Corpus Juris Civilis
was created. The revitalization of civil law began in Europe resulting in the law reigning as
supreme in Western Europe, and eventually spreading to other regions. Civil law is characterized
as the legal system “currently applied to most Western European countries, Latin America,
countries in the Near East, much of Africa, Indonesia, and Japan.” Asasriwarni M. Jandra,
Comparison of legal system: Islamic law system, civil law, and Common law 7 (International
Journal of Islamic and Civilizational Studies, 2018). The civil law tradition has encountered
many interruptions and discontinuations that hindered a consistent view of the tradition. H.
Patrick Glenn,=Legal Traditions of the World 133(5th ed. 2014).
The focus of civil law rests on disputes occurring between individuals and the protection
of rights to ensure fair justice. The process used promotes a chance for greater impartial cases to
resolve disputes. Along with a system that promotes fairness, civil law can provide greater
LEGAL SYSTEMS COMPARISON 5
flexibility when handling disputes that could produce more efficient and economic results. A
challenge of civil law is the lack of advancement that can occur as opposed to that of common
law. The changes in society concerning norms and values are difficult to address in civil law. The
primary reason is due to the original meaning of the actual text, understanding no concern will be
provided as it relates to the initial aim of the law when created. Additionally, another challenge
pertains to the inability for the jury to assess the facts of a case. Under civil law, evidence will
not be heard by both sides and the court will exercise the ultimate authority.
Benefits and Challenges of Islamic Law
The Islamic legal tradition was founded on religious standards and is based on teachings
identified in the Quran. Muslims are guided by this set of principles that set the tone for conduct
deemed appropriate in Islamic law. The benefit of a set of principles contributes to the legals
system constituting nearly ten percent of countries across the world and continued influence of
other regions. Emilla Justyna Powell & Stephanie J. Rickard, International trade and domestic
legal systems: Examining the impact of Islamic law 560-561 (International Interactions, 2010).
The Islamic law has a strong tie to the Islamic faith and integrates aspects of formal law while
including ethical guidelines. Id. at 561. Additionally, another benefit of the legal systems
includes the dictation of relations between people, groups, communities, and nations. A challenge
of Islamic law is simply attempting to define the legal system primarily because it does not
possess a unified code. The legal approach also focuses on how Muslims should live according
to the Islamic faith and way of life. Legal matters are not always included in this particular
approach. The legal approach is also steeped in religious and ethical implications.
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Possible Solution for Common Law
Common law relies on precedent to safeguard against varying legal principles applied in
cases that are similar in nature. Precedent “binds judges, requiring certain outcomes and
foreclosing others.” Richard M. Re, Precedent as permission 908 (Texas Law Review, 2021). In
doing so, the legals system is viewed as acting in a fair and equitable manner. The legal rules that
are set in previous court decisions support identical treatment in comparable cases. The decisions
should not be based entirely on the facts associated with the case. Common law is used as a
foundation for future cases due to guidance in decision making. Courts will view all decisions as
harmonious with past decisions and are rooted in legal principles that are established. The
approach is deemed fair, and uniformity is apparent in this legal system.
The standard that is set for new cases according to the common law precedent can pose
challenges. Common law is plagued with past decisions becoming dated and unfair but is
continually used to guide future rulings. The creation of new standards to nullify past rulings can
make a difference in cases that have the greatest impact on certain cultural groups. A response
could be courts follow precedent unless stringent requirements of stare decisis are met, courts
could have permission to follow precedent; and alternatively apply one’s view of underlying law.
Richard M. Re, Precedent as permission 914 (Texas Law Review, 2021). Precedent can be
viewed as supporting stringency in law and legal doctrine will not progress as society progresses.
As challenging as it may be, legislative changes to the interpretation of common law are a viable
solution to this problem. Outdated and biased decisions of the past can shape the rulings of future
cases until societal changes initiate courts to overturn such decisions. The reinterpretation and
revision of law should continue to adapt to changes in modern law. States can also look at
codification of common law and lower courts can move away from precedents should they be
