VinUniversity

FACULTY OF ARTS AND SCIENCES

MAJOR LEGAL SYSTEMS

IN THE WORLD
Asso.Prof. Dang Minh Tuan
VNU School of law – Vietnam National University
 CONTENTS
• Meaning of legal system
• Classification of legal systems
• Vietnamese legal system
• Q&A
• Homework evaluation
 Definition of legal system
• The set of laws of a country and the ways in which they are
interpreted and enforced (Collins English Dictionary).
• The legal system includes rules, procedures, and institutions by
which public and private activities can be carried out through
legitimate means.
• It can also be defined as a body of rules including the principles, rules
or doctrines associated with them that have the force of law in a
given society.
What makes a legal system?
1. Sources of law and their hierarchy
2. Law-making institutions (and their hierarchy)
3. Law-enforcing institutions and their powers (mostly courts)
4. Legal principles and concepts
5. The organisation of the legal profession (the judiciary, the
prosecutors, the lawyers)
 National legal systems

• Each state has its own legal system.

• The structure and characteristics of these systems are highly variable.
• Many legal systems are organized on the basis of a written
constitution (e.g. the United States), a few have constitutional
systems not resulting from a single written text (e.g. the UK); a few do
not have an explicit constitutional framework (e.g. Afghanistan)
• The relative position of sources of laws varies greatly from one
country to another.
 Major groups of legal systems
• It is possible to classify national legal systems into several groups,
based on the existence of common characteristics (legal
traditions/legal families)
• Basic elements for distinguishing legal systems: sources of law; legal
principles and concepts; and tradition.
• Major groups of Legal systems: civil law; common law; religious law
(Islamic law); customary law; common law and civil law; others.
 Canada

Europe Mongolia

USA

West Asia India

Africa
South
America

Australia

Argentina
Basic elements for distinguishing
legal systems
1. Sources of law – what constitutes law in each legal system (statutes,
customs, judicial decisions, general accepted legal principles, the opinions
of jurists…)
• Under Sources of law we explained that some countries will apply
greater weight to certain sources of law than others, and that some will
put more emphasis on judicial decisions than others.
Civil law systems place more emphasis on statutory law (legislation)
Common law systems gives a broader role to case law, which is
considered to be the source of many of its rules, and has developed
complex technical instruments to apply, interpret and modify such case
law.
Basic elements for distinguishing
legal systems
2. The legal concepts and terminology used by each system
• This not a matter of language, but rather of ideas
• Concepts such as equity, or consideration, have a technical sense under
common law which has no exact equivalent in other legal system.
Equity provides remedies in situations in which precedent or statutory
law might not apply or not be equitable.
Consideration, in contract law, an inducement given to enter into a
contract that is sufficient to render the promise enforceable in the courts.
• On the other hand, many concepts used in civil law systems, but are not-
existent or irrelevant in other systems.
Basic elements for distinguishing
legal systems
3. The legal tradition – the historical development of each national
law
• Historical, civil law systems have been based on Roman law and on
the codes enacted in continental Europe;
• Common law systems are based on English common law;
• Legal systems from the Muslim tradition are based on Islamic law, etc.
 Common law systems
• Common law (also known as judicial precedent or judge-made law, or case law)
is a body of unwritten laws based on legal precedents established by the courts.
• Countries following a common law system are typically those that were former
British colonies or protectorates, including the United States, India, Canada,
Australia.
• Features of a common law system include:
(a) authority of the judgments delivered by higher courts and tribunals;
(b) composition of judicial institutions;
(c) adversarial system of court proceedings, and the role of judge,
(d) the importance of Acts, Statutes, and other legislations passed by competent
authorities.
Common law systems
(a) Authority of the judgements delivered by higher courts and tribunals: the
judicial precedents are binding – case law
(b) Composition of judicial institutions:
• The judges are highly skilled persons who have specially studied the discipline of
law and possess practical experience in legal administration either as advocates or
judges.
• A judge, in other words, cannot be a lay person or even a scientist. He must be a
person of legal background, either as an advocate or a judge or at least with a
degree in law;
• Legal education: a bachelor degree requirement for law student; legal
experiences/practices as a compulsory requirement to become a legal practionner
(advocates/judges…)
Common law systems
(c) Adversarial System of Court Proceedings and the role of Judge:
• The disputing parties engages advocates who act like adversaries in
the court of law and each advocate fights tooth and nail against the
other in order to win the case.
• The judge in the court acts like a neutral observer listens patiently to
the advocates of each party.
Common law systems
(d) Acts, Statutes passed by Competent Authorities:
• Though the legislations passed by competent authorities such as the
Parliament/legislatures are given an authoritative place which is binding on
the judges, whenever the judges find any gaps in the Act or Statutes passed by
the Parliament, they can make suitable interpretation to fill the gap in these
acts.
• In other words, the judges and advocates of the Common Law system would
think that the Acts are very abstract and the rules contained in those Acts are
very general in nature.
• Facts of every case would be so peculiar that it would be very difficult to apply
the general and abstract form of rule which may need suitable additions and
interpretations
Civil law systems
• The expression "civil law" is a translation of Latin jus civile, or "citizens' law",
as opposed to the laws governing conquered peoples (Jus gentium).
• The origin of ‘Continental Legal System’ can be traced to the old age Roman
Empire of the 5th century A.D.
• Civil law is sometimes referred to as neo-Roman law, Romano-Germanic law
or most commonly referred to as Continental law.
• This legal system spread all over Europe. In the rest of the world, this legal
system was imposed during the era of colonialism during the seventeenth
and eighteenth centuries.
• Now you may find this legal system present in many countries of Southern
America and parts of Africa
Civil law systems
• Common features of a civil law system include:
(a) importance of Acts, Statutes passed by the Parliament or competent
authorities;
(b) composition of judiciary;
(c) power of the judges to make law; and
(d) inquisitorial approach of the court proceedings
Civil law systems
(a) Importance of Acts, Statutes passed by Competent Legislature:
• The Acts passed by the Parliament or the competent authorities
receive the highest importance in this legal system.
• Judges regard the rules framed by the Parliament as supreme and do
not try to change it by asserting their own authority as in the
Common Law
• The judges may give their own interpretations of the vague language
used in the Act, but they would say that it would be not binding
except upon the parties to the dispute.
Civil law systems
(b) Composition of Judiciary:
• Persons who have specialized knowledge of any particular field may
be appointed as judges. Thus, an engineer or a doctor or a scientist
may become a judge. There is no requirement to study law as a
separate discipline for a requisite number of years and practice in the
court of law thereafter.
• More countries require a law degree to become a judge, but legal
practical experience is not a compulsory.
• Legal education: entering law school from high schools; specified
academies for lawyers; judges
Civil law systems
(c) Power of the judges to make law:
• The judicial judgements are not binding, but they are given respect by the judges
in other cases.
(d) ) Inquisitorial approach of the court proceedings:
• the judges in the ‘Continental Legal System’ play active roles in finding the truth.
• The judges do not simply act as a referee between the prosecutor and the
defense but they actively investigate the matter themselves with the co-operation
of all disputing parties and try to establish the truth by collection of evidence.
• Collection of evidence is thus not the sole responsibility of the advocates but the
judges too.
Civil law v. Common law tradition
CIVIL LAW COMMON LAW
MAIN SOURCE OF LAW legislation case law
(codified law) (precedents)

LAW-MAKING BODIES legislative bodies the judiciary

CREATION OF LEGAL PRINCIPLES from general and abstract; from specific and individual;
deductive reasoning: applying a inductive reasoning:
general principle to a particular legal principles derived from
case individual cases

ROLE OF THE JUDICIARY interprets and applies the law creates the law
(precedents)

TYPE OF LEGAL PROCEDURE inquisitorial adversarial

Which legal system, civil law or common law is better?
(Group Discussion)
New trends
• Each system has its advantages and disadvantages, therefore the
trend is that every system interact one to another; there is no a pure
common law nor a pure civil law.
• The increasing contemporary influence of international agreements
(international law).
• Therefore, the division of national legal systems into families or
cultural groupings is weakened.
Match two parts of the following
sentences:
1.Case law is a. … an established written law,
especially an Act of Parliament
2.Code is b. ... law established by precedents
3.Consolidation is c. … decisions of courts in earlier
similar cases
4.Enactment is d. … an official set of laws

5.Precedents are e. … the action of making a law

6.Statute is f. … the act of bringing together
various Acts of Parliament which deal
with one subject into a single Act
Some other legal systems
• Islamic law
• Islamic law is based largely on the teachings of the Koran (literally: 'the Reading').
• The totality of Islamic law is known as the Shari'a, which means 'the way or path to
follow'.
• The unique ground for the validity of Islamic law is that it is the manifested will of the
Almighty: it does not depend on the authority of any earthly law-giver.
• One of the consequences is that Islamic law is immutable, for it is the law revealed by
God.
• Thus, society must adapt itself to the law rather than generate laws of its own as a
response to changing circumstances.
• Since Islamic law reflects the will of Allah rather than the will of a human lawmaker, it
covers all areas of life and not simply those which are of interest to the state or society.
Some other legal systems
• Socialist law
• Great influence of Civil law tradition
• Legal concept: law as an instrument used by the wealthy class to
dominate and exploit the weaker and laboring class (Kark Max).
• Law and society under the will of the communist party (rule by law vs
rule of law).
• Importance of public law (to protect order and security)
 Discussion Question
Which legal systems does Vietnam belong to?
Vietnam’s legal system
• History: Influence of Chinese Confucian law (1000 years); French law (civil
law) in the colonization period and the socialist law (since 1945, in particular
from 1950s).
• A socialist legal system based on the civil law, with some major modifications
from Marxist-Leninist ideology; and is in the transition with many legal
adaptations to international law and other legal systems.
• The main features:
Legislation is the most important source of law;
Courts must make decisions based on legislation;
Policies are set out by the Communist Party, the only political party in
Vietnam, which can lead to changes in legislation in the future.