The main difference between the two systems is that in common law countries, case law – in the form of published judicial notices – is of paramount importance, while in civil law systems, codified laws prevail. But these divisions are not as clear as they may seem. In fact, many countries use a mixture of features of the general law and civil law systems. Understanding the differences between these systems first requires understanding their historical underpinnings. Unlike civil law, common law appeals are rarely brought, mainly because of the certainty of the case law. Each case will be fully detailed and in power in subsequent cases. However, the fully detailed process sometimes causes many operating difficulties, making the law rigid rather than flexible. Ta`azir crimes in Islamic law, for example, are largely codified because existing sources of law could not be used to solve the given problem. This means that there is something that coexists between Islamic law and civil law. However, the main difference between these two legal systems lies in the application of case-law (stare decisis) and codifications.
The common law gives absolute priority to case law, while civil law considers it complementary. Nor do common law codifications have the same role as in civil law. Although there is a markedly different propensity for law between these two systems, we cannot judge whether one is superior to the other. In Islamic countries, the law is considered absolute and constant, while in civil/customary law it is much more flexible, changing and negotiable. One of the main reasons for this is the different origins of the law. In Islamic law, God created the law, in civil/customary law, people made laws. This therefore leads to a clear separation between religion and law in Westernized legal systems, whereas they are a uniform concept in Islamic law. Another difference between these two types of legal traditions is the categorization of law.
In Islamic law, the type of punishment categorizes crimes; In the Western legal system, crimes are classified according to the severity of the damage. The Qur`an has banned customs prevalent in Islamic law such as idolatry, gambling, alcohol, promiscuity, unbridled polygamy, usury, etc.1, but in most civil/common law countries it has been legalized. The original source of the common law system dates back to the English monarchy, which issued formal orders called “writs” when justice was to be done. Since pleadings were not sufficient to cover all situations, fair courts were eventually created to hear complaints and develop appropriate remedies based on principles of fairness from many sources of authority (such as Roman law and “natural” law). As these decisions were collected and published, the courts were able to look for precedents and apply them to ongoing cases. That is how the common law developed. The law includes a systematic set of rules that govern the conduct of individuals, companies and other organizations within a society.1 The role of law in every country is practically the same, as they all have a single purpose. However, we will divide them into three main legal systems, because the method of dealing with the given problem or the implementation of the rules varies from one country to another. Each of these legal systems, namely general (Anglo-American), civil (continental) and religious (Islamic) law, represents the same functions and differs from each other in how the law was promulgated or treated and how it was created. This article discusses the importance of the sources of each system and a fair comparison between the sources of those systems, and highlights the importance of convergence theory. – Al-Azmeh, Aziz., (1988). Islamic law: social and historical contexts.
New York, NY: Foundation Press – Cammack M., (2005) Islamic Law [online] available at: [accessed March 22, 2011] – Cruz P.D., (2004) Comparative Law. 2ndish Publishing Ltd.:Uk – David, René and John E. Brierly. (1985). Important legal systems in today`s world. London: Stevens. – Dr. Kavakci Y.Z., (2010) Sharia / Fiqh / Islamic Law. College of Islamic Studies, Atatürk University. – Glenn, Patrick H.
(2000). Legal traditions of the world: sustainable diversity in law. Oxford: Oxford University Press. – James P.S., (1989) Introduction to the English Legal System. 12th edition butterworths: London – Merryman J.H., and Rogelio P.P, (2007) Civil Law Traditions. Stanford University Press: California – Mourisi Badr, Gamal. (1978). “Islamic Law: Its Relationship with Other Legal Systems.” The American Journal of Comparative Law, 26(2), pp. 187-198. – Muslim Women`s League., (1995) Intellectual Background: Islamic Sources of Information and their Development into Islamic Law [online] verfügbar unter: [abgerufen am 19. März 2011] – Nassar, Nagla. (1995).
Sanctity of Contracts Revisited: A Study in the Theory and Practice of Long-term International Commercial Transactions. Dordrecht: Martinus Nijhoff Verlag. – Rayner S.E. (1991). Contract Theory in Islamic Law: A Comparative Analysis with Special Reference to Modern Legislation in Kuwait, Bahrain and the United Arab Emirates. Graham & Trotman Ltd. – Routledge.Bederman, David J. (2001). Völkerrechtliche Rahmenbedingungen.
New York, NY: Foundation Press. – Vago, Steven. (2000). Recht und Gesellschaft. Upper Saddle River, NJ: Prentice Hall. – WPONLINE.ORG..,(2002) Quellen des islamischen Rechts [online] Erhältlich bei: [Zugriff am 19. Today, there are many common types of law in countries that have different legal systems. Then “lectured” by the judge, who has a little more flexibility than in a civil law system to create an appropriate remedy at the end of the case. In these cases, lawyers are tried and try to convince others on legal and factual issues and play a very active role in court proceedings. And unlike some civil courts, common law countries such as the United States prohibit persons other than a fully licensed attorney from preparing legal documents of any kind for another person or organization. This is the sole responsibility of the lawyers. While there are obvious differences between these systems in the implementation of the law, each of them plays the same role and functions.
All of these systems are effective in their place. Lawyers continue to represent the interests of their clients in civil proceedings, but have a less central role. However, as in common law systems, its functions often consist of advising clients on legal matters and preparing pleadings for submission to the court. But the importance of oral proceedings, court presentations and active advocacy in court is diminished compared to a common law system. In addition, non-procedural legal tasks, such as preparing wills and drafting contracts, may be left to quasi-lawyers who serve businesses and individuals and who may not have post-graduate legal training or are not allowed to practise in court. .
