Legal System : Civil Law dan Common Law | KASKUS

Every country has a system, norms and legal principles that vary according to the context of the country’s territory. Usually this legal system is influenced by customs, religion, and the colonial heritage that had colonized the country.

The cia.gov page writes that Indonesia adheres to a rule of law legal system which is derived from the Roman-Dutch principle. This system is a composition of the legacy of Dutch colonialism, governed by a mixture of customary law and religion recognized in Indonesia. While the source of law was adapted from Anglo Saxon countries and continental European law.

The continental European legal system is the source of Indonesian law, which is a legal system that prioritizes the source of written law as the source of law. The purpose of implementing the law is to obtain legal certainty for all citizens.

The following is the legal system that is applied in various countries in the world as reported by Cantwell & Goldman PA:

Civil Law

Civil law is a legal system that is widely used by countries around the world. In principle, civil law is organized through legal authority embedded in written codes.

Civil law originates from Roman-German law and is applied in the Continent of Europe, Central America, South America, and several other countries.

Common Law

Contrary to the codification of law in civil law, in the common law system, jurisprudence is the main source of law and it adheres to the doctrine of the precedent system.

According to Nurul Qamar in Comparative Legal and Judicial Systems Civil Law System and Common Law System (2010: 49), the doctrine of the precedent system substantially implies that the law is bound by a judge’s decision to follow and or apply previous court decisions, whether he made himself or by predecessor for a similar case.

The common law system originated in England and is implemented in many English speaking countries such as Australia, Canada, United States, Wales, and other countries.

Customary Law

Customary law comes from customs inherent in certain communities. Common characteristics of customary law are usually based on unwritten law. In addition, the customs that exist in the community are widely applicable so that they are legally accepted. He also helps regulate social relations in general.

The application of customary law is commonly found in countries in Africa and the Pacific Islands, as well as some countries in Asia.

Religious Law

The religious legal system is a legal system that is regulated based on holy books and religious beliefs. Islamic law or sharia law is the legal system most widely applied as religious law. It regulates the public and private life of its people.

Generally, Islamic religious law is often found in several countries on the continent of Africa, the Middle East, Central Asia, South Asia, and is also applied in countries with Muslim-majority communities.

Mixed Law

Mixed law refers to a combination of various elements of legal law as described above. Mixed law is also known as prulalistic law. It combines several legal systems such as civil law, customary law and religious law.

Mixed law is often found in former colonial countries, which after independence still retained some elements of colonial law and adapted it to the context of society at that time.

Several mixed legal systems can be found in the state of Louisiana which combine civil and common law laws. Likewise Afghanistan, which mixes civil law, customary law, and sharia rules.