There are certain general categories of legal tradition that differentiate
legal systems by country or time. These legal traditions are shared by a
certain group or whole systems and make it possible to identify different legal
families. In other words, from understanding the legal tradition in which each
legal system is affiliated it is possible to speak of different legal families. However, even though a
national legal system can belong to an identified legal family, simultaneously, at the local or
“communitary” jurisdiction, a diverse legal system belonging to a different
legal tradition can exist. Indeed, “It is difficult to point to one country that has a
pure legal tradition without influence from other systems. For historical
reasons, as well as political and economic influences, the legal systems of
countries are often an amalgamation of various legal systems, incorporating
elements of different legal traditions.”[i]
Canada is an example of this situation: its national system belongs to the
common law tradition, while the legal system in the province of Québec belongs
to the Civil Law tradition. Another example can be found among the different
Latin American countries with indigenous populations, whose national systems
belong to the Civil Law family and, simultaneously, in more reduced territorial
jurisdictions, the so called indigenous consuetudinary law is applied; including
with respect to electoral matters.
Indeed, there are several legal families derived from a common origin or
past, from similar institutions, from a language code or shared concepts, from
the similarity of the sources of the law, from the community of proceedings and
the methods or techniques used by jurists, as well as from the similar
philosophical, economic or political principles which inform each legal
system.
Knowing the family in which each national legal system belongs is useful to
widen the perspective of the institution or the electoral process, as well as
to obtain a more informed and reliable understanding of differences among legal
systems.
Since the study must take into account the family which the system belongs to and consider its cultural, economic, political and social contexts, the
translation of terminology can be problematic when trying to understand,
explain or compare a certain country’s or countries’ electoral institutions,
instruments, or processes.
The Roman-Germanic, Roman-Canonic, or civil law families, have their
origins in Roman Law (the Twelve Tables, Corpus Iuris Civile, and Corpus Iuris
Canonici) and was decisively influenced by Canonic Law. Also, it was enriched
with the contributions of commentators and “post-commentators”, and the work of
the Latin-Germanic universities’ jurists. This way the so-called ius commune was formed. Later through
codification processes, from which several civil, commerce, criminal or
procedural codes were made, continued to the conformation of national laws
arriving in the creation of the constitutions. In this legal tradition, the
development of civil laws and the codification of legal dispositions based on
justice and equity was favored. Countries in the Scandinavian region, Latin America,
several African countries which had been European colonies, and several
Continental European nations fundamentally belong to this legal family.
The common law family arrived during the XI century in England. This legal
tradition has had a wide diffusion in the majority of the English-speaking
countries. It is characterized by the creation of legal dispositions coming
from the judicial resolutions. In other words, the system follows the judicial
precedent through which a particular case receives the same legal solution
given to a previous and similar case. Therefore, opposite to the families that
favor legislative creation, the law is a product of the judges’ labor. Basically,
the United Kingdom, some African, American and Oceanic nations belonging to the
Commonwealth legal system are found within this legal family. Most of these
countries enforce English Law and recognize the monarch of the United Kingdom
as Head of State. Another example is the United States.
Since they do not share a common juridical tradition, the religious systems
do not constitute a legal family. The only adhesive feature is the religious or
philosophical nature of its law, where law and religion are practically
synonyms. In the different systems belonging to this tradition, the
applicability of this mixture of conduct rules is restricted to certain
subjects, such as in Hindu or Brahmanic law, observed in wide regions of India,
or Hebrew law, kept by Orthodox Jewish communities spread through many
countries.
However, there are a significant number of countries where
the great majority of citizens practice the Islamic religion and effectively
share legal culture and tradition; therefore it is possible to attach them to
the Islamic family.
These notions are useful when
considering the legal framework in a given country and in particular in
subsequent sections when considering the role of the judiciary and judicial
overview.
[i] Information for
Development Program and International Telecommunications Union. “Snapshot
of Different Legal Traditions.” ICT Regulation Toolkit Website.
