Daftar Isi

The Most Widely Used Legal Systems in the World

Throughout history, up to the postmodern era, various legal systems have developed and been applied in different societies. As noted by one of Indonesia’s foremost legal scholars, Satjipto Rahardjo, there is not just one legal system in the world, but several (Rahardjo, 2014). In the global legal context, two legal systems have predominantly influenced modern legal frameworks: common law (Anglo-Saxon tradition) and civil law (Continental European tradition).

These two systems are grounded in fundamentally different philosophies. According to legal theory, every legal system is comprised of multiple elements, including its structure, rules, categories, and concepts—each of which contributes to its unique characteristics. One of the key distinctions between global legal systems lies in the structure of their respective judicial systems (Asyhadie & Rahman, 2013).

Baca juga: Penemuan Hukum dalam Sistem Hukum Civil Law dan Common Law

An Overview of the Common Law System

This article focuses on the common law system. As Sinaga, Silubun, and Rado (2020) explain, the common law system—also known as the Anglo-Saxon legal tradition-originated in England around the 11th century. Due to England’s colonial history, many of its former colonies and Commonwealth nations adopted this legal system. The influence of British and American colonial administration also spread common law principles to countries such as Canada, Malaysia, New Zealand, and others.

Unlike the civil law system, which is rooted in a positivist legal philosophy that emphasizes codified statutes, written administrative rules, and an inquisitorial court process, common law is built upon the authority of judicial decisions (beslising). It places less emphasis on written statutes (geschreven recht) and more on court precedents. This is partly due to its origins in British custom, which historically lacked codified laws, thereby giving judges’ decisions significant legal authority (Noho, 2020).

In countries following the common law system, government regulations generally play a more limited role in judicial decision-making. Judges are granted greater discretion in legal interpretation, often deriving law directly from precedents rather than from codified statutes-unlike their counterparts in civil law jurisdictions, who are bound to refer to written law when resolving cases.

The Presence of Government Regulations in Common Law Countries

Despite the judicial emphasis on precedent, common law countries still produce and enforce a vast array of government regulations. The United States, for instance, maintains a complex legislative process involving both the House of Representatives and the Senate.

This highlights the government’s continued role in shaping national legal standards across various sectors. U.S. regulations govern areas such as healthcare (e.g., drug use), intellectual property (e.g., trademark licensing), and public safety (e.g., rules about minors traveling by air). These regulations provide structure and guidance for citizens and are integral to the administration of state functions.

Reevaluating the Role of Government Regulations in Common Law Systems

This gives rise to an important question: if jurisprudence is the primary source of law in common law countries, what is the practical function of government regulations? Could it be that public legal disputes are adequately resolved through judicial interpretation and legal advocacy without relying heavily on statutory guidance, as is more typical in civil law systems?

In fact, several compelling arguments affirm the substantiality of government regulations in common law systems:

Legislation as a Complementary Source of Law

While the doctrine of stare decisis—the principle that courts should follow previous judicial decisions—is a cornerstone of the common law system, legislation remains an essential source of legal authority. Statutory laws enacted by legislatures (or Congress, in the U.S. context) often address legal areas that precedents have yet to cover.

Additionally, the common law system evolves with society’s sociological and psychological development. As Horack Jr. (1937) noted, the stare decisis doctrine itself evolved alongside the development of case precedent. It would be difficult to achieve justice in modern legal contexts without acknowledging the importance of statutory regulations. Ignoring this role could undermine the government’s responsibility to protect its citizens through clear, normative guidelines.

Judicial Interpretation of Legislation

In the dynamic relationship between law and society, judges in common law systems are empowered to interpret statutes when resolving cases-particularly in instances where there is a legal vacuum. Judges may combine legislative texts with judicial precedents to reach decisions, ensuring that the law remains adaptable and responsive to societal changes.

This flexibility allows the judiciary to bridge gaps in precedent while maintaining legal continuity, without needing constant statutory revisions. It also supports a more pragmatic and context-sensitive application of the law.

The Constitution as the Supreme Legal Framework

The constitution is the highest legal authority in any legal system. In common law countries, constitutional law serves as the foundation upon which all legislation and government authority must rest. For example, in the United States, the Constitution is the supreme law of the land and plays a pivotal role in guiding both legislation and judicial review.

Baca juga: Perbedaan Civil Law dan Common Law dalam Penemuan dan Penerapan Hukum

Courts have the power to invalidate laws that are inconsistent with the Constitution-a process known as judicial review (Dixon & Ginsburg, 2018). This mechanism ensures political accountability and protects fundamental rights. Consequently, regulations issued by the government must align with constitutional principles, further reinforcing their importance within the legal system.

Conclusion

Despite the strong reliance on judicial precedent, government regulations remain highly substantive in common law countries. Courts routinely consider statutory law when adjudicating cases, particularly in areas not clearly defined by precedent. The interplay between legislation, judicial interpretation, and constitutional authority reflects a balanced legal system-one that is both rooted in tradition and responsive to contemporary needs.

Thus, rather than being marginal, government regulations in common law systems play a pivotal role in shaping legal outcomes and maintaining order, fairness, and justice in society.

References

Rahardjo, S. (2014). Ilmu Hukum. Bandung: Citra Aditya Bakti.

Asyhadie, Z., & Rahman, A. (2013). Pengantar Ilmu Hukum. Jakarta: Rajawali Pers.

Sinaga, J., Silubun, Y., & Rado, R. (2024). Sistem Hukum Common Law: Perkembangan Dan Karakteristiknya. Jurnal Restorative Justice, 8(1), 23-32. https://doi.org/10.35724/jrj.v8i1.6040.

Horack Jr., F. E. (1937). The Common Law of Legislation. Iowa Law Review, 23(41), 41-56. Available at https://www.repository.law.indiana.edu/facpub/1203.

Noho, M. D. H. (2020). Mendudukan Common Law System dan Civil Law System Melalui Sudut Pandang Hukum Progresif di Indonesia. Jurnal Rechtsvinding: Media Pembinaan Hukum Nasional, 1-4.

USA Government. (November 5, 2024). How laws are made. https://www.usa.gov/how-laws-are-made.

Transportation Security Administration. (n.d). Traveling with Children. https://www.tsa.gov/travel/tsa-cares/traveling-children.

U.S. Department of Transportation. (October 21, 2013). When Kids Fly Alone. https://www.transportation.gov/airconsumer/when-kids-fly-alone.

U.S Attorney’s Office (U.S Department of Justice). (May 21, 2020). Frequently Used Federal Drug Statutes. https://www.justice.gov/usao-nh/frequently-used-federal-drug-statutes.

USLegal. (n.d). Entertainment law. https://uslegal.com/entertainment-law.

Dixon, R., & Ginsburg, T. (2017). The Forms and Limits of Constitutions as Political Insurance. International Journal of Constitutional Law, 15(4), 988-1012. https://doi.org/10.1093/icon/mox080.