Talk:Legal systems of the world

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Contents 1 suggestion 2 The case of India 3 Pakistan is Common Law 4 NZ is Common Law 5 What's about european union? 6 Malta 7 Argentina and Chile 8 Quebec 9 Remove 'customary law' 10 Louisiana's Code not inherited by way of Louisiana Purchase

[edit] suggestion

I'm suggesting this should be merged with law because, the fact is, you can't talk about law without situating the law within a legal system. PullUpYourSocks 03:47, 9 December 2005 (UTC)

rather than merge I decided the article would be best served by giving a servey of the legal systems in practice around the world. PullUpYourSocks 12:48, 9 December 2005 (UTC)

I agree that this page makes little sense as it stands. Maybe we should rename it to List of legal systems by tradition or somesuch.

sure, that could work. PullUpYourSocks 04:15, 11 December 2005 (UTC)

[edit] The case of India

India's is a curious case. Before the coming of the British, local and private, as well as Caste laws were prevalent throughout India. Imperial conquerers from time to time instituted their own legal codes. After the coming of the British, Indian laws were codified for better administration and dispute resolution. Many of the laws thus codified and instituted were based on English Common Law. However, the point to be taken is that all laws were codified, and only then were they dispensed. If we just look at the Common Law definition given in Wikipedia:

"The common law forms a major part of the law of many countries, especially those with a history as British territories or colonies. It is notable for its inclusion of extensive non-statutory law reflecting a consensus of centuries of judgments by working jurists. ... One is used to distinguish the authority that promulgated a particular proposition of law: in the United States, we typically have "statutes" enacted by a legislature, "regulations" promulgated by executive branch agencies pursuant to a delgation of rule-making authority from a legislature, and "common law" decisions issued by courts (or quasi-judicial tribunals within agencies) that discuss and decide the fine distinctions in statutes and regulations. See statutory law and non-statutory law."

we find that the Common Law has mostly been non-statutory customary law. However, Indian laws during the centuries since the coming of the British have been what is called 'Positive law', ie, laws made by and promulgated by a secular known authority. There are certain sectors of Indian laws where some customary and what are called 'Personal laws' are prevalent, like in issues relating to marriage, inheritance, divorce, adoption, etc. Even there proper statutes have been made that dictate and regulate the jurisdiction of personal laws. Article 44 of the Constitution enjoins upon the government to ensure that a Common Civil Code is ushered throughout the land, but that has not yet come about, and Common Civil Code remains a most contested issue in Indian Polity. India's constitution was written after Indian independence, and was promulgated on 26 January 1950, and the constitution remains the primary legal document. The Indian Civil Code, the Indian Penal Code and Civil Procedure Codes are based on English made laws (all of which were made especially for India, although heavily borrowing from English system), and they have been amended many times. This puts India in a very unique position. Of course there are remnants of Common law as usually defined, but I think India should more rightly be put under the Civil law system.

These are good points and warrant further research. However, I still hold several major reservations. First, codification alone does not make a system civilian. A majority of US laws are codified in places such as the UCC, restatements, and in state penal codes, but we don't say that it is civilian. Second, as far as I recall, India folllowed the adversary system, a distinct tradition of the common law, rather than the inquisatorial system. As well, from what I've read of Privy Council decisions from India, I get the impression that Indian judges were bound by presedent (ie. stare decisis), another common law feature. Lastly, the sources available at the bottom of the article, the CIA factbook and the Ottawa law survey, both say that India is common law. While they could both be both wrong, I think some more authoratative sources are needed to refute them. I believe we are both in agreement that India is not a pure common law country, but the question remains as to which system, at its core, it follows. --PullUpYourSocks 13:03, 12 January 2006 (UTC)

[edit] Pakistan is Common Law

The Pakistani legal system is based on the common law. There are a few areas (inheitance for one) which are based on Islamic law to a certain extent, but

1) The Pakistani Penal system is based on the Indian Penal Code of 1860. The civil procedure codes are still in effect.

2) Pakistan retains an adversarial court procedure.

[edit] NZ is Common Law

Just added in NZ in the common law table, might put something about Maori land law later, but new to Wikipedia editing so I want to check things first :-) Alphamatrix 03:30, 12 April 2006 (UTC)

[edit] What's about european union?

european union makes directives. what kind of law is this. Will a european law be differently apllied in UK and in France?

[edit] Malta

I'm moving Malta from Civil Law to mixed for the following reasons:

• Although the Civil Code looks Civil at the first look, it has some peculiarity that are typical for Common Law: contracts need consideration (Cap. 16 § 966 (d)), and the primary remedy for non-performance is damages, not specific performance (Cap. 16 § 1125)
• Other sources such as [1] list it as mixed.

-- 3247 13:21, 16 September 2006 (UTC)

[edit] Argentina and Chile

The map shows Argentina as mixed common and civil but the article states it is just civil. Which is it? Also, Chile overhauled their trial system so that it is now adversarial. Show we include this as mixed now? KingOfAfrica 13:44, 21 September 2006 (UTC)

Two of the sources found in the external links section seem to conflict on Argentina. I'm more inclined to follow the CIA page, but I would prefer a third source to confirm it. As for Chile, I would keep it as civil. The main distinguishing factor for a common law-style system is whether the justice system follows stare decisis. I'm not inclined to think that an adversarial style would make it a mixed common/civil system. You could argue either way, really.--PullUpYourSocks 20:35, 6 October 2006 (UTC)

[edit] Quebec

To say that Canada is common law except civil law in Quebec is a little misleading.

For criminal law purposes, common law is used throughout Canada, including quebec. For civil law purposes (by this I mean private law) common law is used everywhere except Quebec. Quebec does use a napoleonic system for private law, but common law for criminal law.

If someone could figure out how to work this in there that'd be great.

[edit] Remove 'customary law'

I'd like to suggest that the sections about 'customary law' be removed. The reason is that I just don't think it's an actual legal system in its own right. Custom is certainly a source of law, and an important one, but it doesn't constitute a legal system. The only two examples given are Andorra and Mongolia. This is a link to law in Mongolia, which I googled in about 2 seconds, showing a distinct lack of 'custom' - it's a civil code based jurisdiction. As for Andorra, it's a European country, and I bet it's got a civil law system much like the places around it. If you wanted you could call the common law customary law under the definition given on the customary law page, and you could call England a mixed system with custom and common law: think of all the Parliamentary procedures, or the custom that the monarch doesn't sack the elected government (since 1707 I think). I'm sure that you can easily remove it from the page, and it'd make the page far simpler, neater and more accurate. Would it be okay for me to go ahead on this? Wikidea 04:10, 14 January 2007 (UTC)

I've gone ahead and done this, hopefully not too soon, but with any luck it's not really controversial! Wikidea 08:27, 16 January 2007 (UTC)

Customary law is certainly a distinct form of law. It should not be removed. Any casual reading of a comparative law text book should demonstrate that customary law is treated as a separate system with identifiable patterns and earmarks in all jurisdictions practicing such. The Common Law is essentially generalization of customary law, depending on one's perspective. Geofferic 17:05, 31 January 2007 (UTC)

I could be mistaken about this, Geofferic; for instance, I know that public international law relies heavily on custom, in the practice of nation states, which "ripens" into a source of law. But I've not read any books which treat customary law as a full system in its own right. Do you have any references at hand? I think that fundamentally, the only thing that rigidly divides common law from civil law, or any other way, is which is the predominate source of law, not that one kind of source is exclusively authoritative or not. In the U.K., we codified our commercial law in the sales of goods acts; in Germany, there are always instances or case law popping up; there's no international law-maker, although various treaties, the UN codifications and the ICJ's opinions add to the mix of different sources. But as I say, I could be wrong! Wikidea 04:32, 2 February 2007 (UTC)

In the study of Comparative Law, or even of International Law (especially the Law of the Sea), it is difficult to discuss the various specific areas without considering Customary Law as a legal system, specific to it's region. India, for example, is a mixed system of Common, Civil, Relgious and Customary law. The more localized you get in these less developed nations, the more you see the Customary laws being the day to day governing law. Almost every African nation can be said to have a mixed system, with Customary law being a major player. I will have to get back to you soon with some references. I complete understand your skepticism and interest in references. Geofferic 16:26, 7 February 2007 (UTC)

[edit] Louisiana's Code not inherited by way of Louisiana Purchase

The Louisiana section implies that the Napoleonic code came with the Louisiana territory when it was purchased. This is not the case. The Spanish civil code was in effect in the Louisiana territory when it was purchased from Napoleon. The state of Louisiana later voluntarily accepted the French civil code (not truly the Napoleonic code, but that's a fine point). The purchase was completed in 1804 and no true change in law (other than the partial importation of US Common law) occurred prior to 1808, when the Civil Code was drawn up based on French, Spanish and Napoleonic code - with French being the primary influence (France having recently completed all the work of writing up a fresh new code).

Geofferic 17:02, 31 January 2007 (UTC)