The coexistence of legal systems around the world
Written under the supervision of Azizov & Partners Firm of Advocates in December 2024. By Angelica Ruzanova.
The 8 billion inhabitants of our planet are governed by distinct, historically interrelated systems of law. These systems, unique in their own respects, establish rules, present choices, and shape our collective understanding of political, economic, and cultural realities.
A country’s legal system can determine how disputes are resolved in civil litigation, how property is allocated, and how market forces affect specific sectors. It can also influence development by regulating (or, more often, deregulating) foreign investments, trade agreements, and immigration policies, areas that have gained momentum with the rise of corporate globalization.
In short, the differences in these systems - networks of regulatory legal acts and their enforcement practices - define “who gets what” and the purpose of trials. To understand how methods from different legal systems are leveraged today, this article will focus on the two most common ones.
Guiding doctrines within dominant law systems
The two prevailing legal systems worldwide are civil and common law systems.
The civil law system, stemming from the Latin ius civile (law applicable to all Roman cives or citizens) is predominant in continental Europe (including Germany, France, and Russia), Latin America, and parts of Central Asia. This legal tradition stems from medieval attempts to systemize local customary laws that, in turn, harmonized rational principles and minimized judicial discretion. Each phase of the process, from initiation to judgment, is meticulously codified, classified, and institutionalized through legislative acts.
The codes in the civil law system yield an investigative approach where judges actively gather evidence related to the specific violation in question. Similar to a rulebook, they also distinguish between different categories of law:
Substantive law, which establishes which acts are subject to criminal or civil prosecution;
Procedural law, which determines whether particular actions are a criminal act; and
Penal law, which appoints the appropriate penalties.
In contrast, the common law system, familiar to many as the Anglo-American system, is characterized by precedent and case law. Its beginnings can be traced to writs (royal orders) of new kingship in the Middle Ages, which gave birth to the court of equity—formalizing the purpose of trials as the maintenance of justice.
This adversarial system, where evidence is presented by opposing parties before a moderating judge, is prevalent in countries like the United States (except Louisiana, influenced by French rule for over a century), the United Kingdom, and Canada (excluding Quebec). Judges are active participants in shaping the "living law," first articulated by William Blackstone, which evolves based on societal contexts and majority opinions.
The private and public worlds of common and civil legal systems
The obvious difference between these two systems is the responsibility and power vested upon the judiciary. The less obvious distinction is how defendents are pursued by enforcement mechanisms within the system – whether through private or public means.
Civil law systems generally emphasize public enforcement mechanisms. For instance, in a situation where a lifesaving procedure causes the breaking of rib bones (this seems to be a common example), it is rare for the victim residing in a country under the civil legal system to press charges for their injuries. The possible reason for that is the system's reliance on statutory provisions and public interest principles, which often protect individuals acting in good faith during emergencies. Such protections aim to prioritize societal welfare over individual grievances in these contexts.
On the other hand, the determination of criminal charges in the common law system often depend on the reaction of the affected. Take the United States as an example. Whether a biker hits the side window of a stationary car, a minor trespasses into restricted territory, or a driver negligently collides with a pedestrian, the outcomes may hinge on interpretations of fault, intent, and duty of care.
Common law systems may involve a higher degree of private litigation, allowing individuals to seek remedies for personal harm, even in situations where public interest defenses might apply. This has benefits as well as downsides, as the system is relatively unpredictable in return for its inherent flexibility.
So, the civil legal system assumes a more prewritten understanding of “right” and “wrong,” perhaps inspiring greater conformity and community within its players. The common law system is more malleable, arguably allowing for more individualism that is evident in the Western free-market liberalism.
Whichever one is “better” depends on the needs of the country and its populations, including its dependency on factors like religion. Perhaps a better question would be: who benefits from each of the legal systems currently in place, and what does the amalgamation of both ideals look like?
Shifting demands and priorities: Uzbekistan case study
To further understand modern approaches to implememnting (or indirectly utilizing) the methods between these separate legal systems, a closer look at a transitory country like Uzbekistan may be helpful.
Uzbekistan follows a civil law system, which was influenced by the legal systems of Russia during the Soviet era. After gaining independence, Uzbekistan has continued to maintain a civil law framework, with its legal system primarily based on codified statutes, including the Civil Code of Uzbekistan.
Consistent with methodologies implemented by other civil law systems, Uzbekistan allows for the application of foreign law “insofar as it does not contradict local law and public order,” according to Article 1164 of the Civil Code. While public order is not formally defined in the Republic’s Civil Code, evidence of its implementation can be found in procedural legislation.
In recent years, Uzbekistan has experienced economic reforms that have called many of the aforementioned themes in question. Government branches have been (and continue to be) confronted with the idea incorporating English law, given that further national isolation from foreign investment can be diagnosed due to “flawed laws, inadequate judiciary, and improper enforcement practices by state authorities,” according to local practicing lawyer Ilhom Azizov.
An "import of law and justice," including the complementary mentality, ideology, and systemized approaches to justice and reliability, based on Azizov’s commentary, is necessary for the country’s economic integration in the landscape of commercial turnover.
