A s Cambodia begins to re-establish a market-oriented legal system and the rule

of law, it is faced with the monumental task of deciding which system or systems

of law to look to for guidance. To be sure, the choices are daunting, and the

lines between them blurred.

Those not familiar with the study of

comparative legal systems and the current legal systems debate in Cambodia may

have the impression that the choice facing the legal drafter is simply between a

common law system and a civil law system. This is far from the truth.

There are numerous distinct types of legal systems within the civil and

common law traditions. Moreover, there are many viable legal systems outside

these traditions. Added to this are the hybrid legal systems which combine

various aspects of a common law system, a civil law system, and the country's

own customary law. And of course, the many "model laws" drafted by experts with

international organizations or various national and international law societies.

Opinions vary among comparative law scholars on the classifications of

legal systems existing in the world today. In general, most would classify

today's legal systems into the following categories: Roman ("civil law"),

Germanic (mostly "civil law"), Anglo-American ("common law"), Communist,

Islamic, Hindu, and Far-Eastern. To this, some would add the Jewish, Nordic,

African and Malagasy legal systems. Some would not distinguish between the Roman

and German traditions.

Certain systems, however, cannot be easily

classified in one of the above categories. Such hybrid systems - those combining

civil law, common law, and perhaps an indigenous legal tradition - include

Louisiana (USA), Quebec (Canada), Scotland, South Africa, Israel, and

China.

From my contacts with investors in this region, I have noticed

that there is some confusion over which countries follow which legal systems. A

brief overview of the influence of the civil and common law traditions on this

region and the world may be useful for those not directly involved in legal

matters or the current legal systems discussion in Cambodia.

The civil

law tradition is most closely associated with continental Europe. Its historical

roots are found in the law of ancient Rome. It is sometimes referred to as the

Romanistic legal tradition. The major written source of law of the Roman

tradition is the Corpus Juris Civilis, compiled around 534 B.C. by the Byzantine

Roman Emperor Justinian. Roman law was first introduced in Europe through the

conquests of the Roman empire.

With the fall of the empire, so also fell

the influence of its law in Europe. It wasn't until the 11th century that Roman

law began again to influence Europe. Through the work of medieval scholars and

universities, a European common law - the "jus commune" - based almost entirely

on Roman civil law, was established. This jus commune, however, was

unwritten.

Codification of the jus commune did not come until the 19th

Century. The two most famous and most influential codifications were the French

Civil Code of 1804 ("Napoleonic Code") and the German Civil Code of 1896. Most

modern civil codes are based on one or both of these codes.

Although both

codes are based on the Roman law tradition, the French Civil Code and German

Civil Code had some fundamental differences. One such difference was that the

German code was very technical and precise in nature, dealing with detailed

rules rather than principles. The French code, on the other hand, wrote in broad

principles, and was intended to be understood by everyone.

Moreover, the

German code was a synthesis of Roman law and the indigenous Germanic legal

traditions, whereas the French Code drew less freely from local customs and

traditions. (Incidentally, for those who think Cambodia's legislative process is

too slow, the German Civil Code took over 20 years to complete.)

The

French Code's broad, principle based style, was more easily adopted by other

nations than the German Code. Of course, France's colonial expansion during the

19th century certainly helped. (Napoleon would have been pleased by the

influence of his code over the last 200 years. He is reported to have commented

about his many military victories: "One waterloo wipes out their memory, but my

civil code will live forever.")

The German code's influence was less

expansive, primarily because of its complexity, and also because it appeared

after the imperialist period of the 19th Century.

In the Asia-Pacific

region, pre-communist Cambodia, Laos and Vietnam were all heavily influenced by

the French Code. Japan and Korea adopted a civil Code heavily influenced by the

German model. However, the legal systems in these two countries have also been

significantly influenced by US common law and their own indigenous legal

traditions. Other Asian countries following a general civil law model include

Indonesia, Taiwan and Thailand.

Elsewhere, Belgium, Luxembourg, the

Netherlands, Spain, Romania, Italy, much of Central and Latin America, former

French colonial Africa, and North Africa (with Islamic Law) were all heavily

influenced by the French Civil Code.

Portugal, Brazil, and Italy first

borrowed primarily from the French Model, then adopted a German model.

Switzerland borrowed from both models, and added its own indigenous customs. The

Swiss Code was then adopted by Turkey.

Outside of Asia, the German Code

has had significant influence in Greece, Austria, former Czechoslovakia,

Hungary, and the former Yugoslavia.

In contrast, the "Common Law"

tradition (the subject of a future column) is mostly associated with England,

the US and the former British empire. In general, the major difference between

the civil law and common law systems is that the rules governing society in a

common law system emanate from decision by the judiciary in court, rather than

from written Codes, as is the case in the civil law system.

Asian

nations adhering to or influenced by the common law tradition include Malaysia,

India, Singapore, Hong Kong, Australia, New Zealand, Myanmar and the

Philippines.

It can be argued that the "typical" modern civil law nation

has been influenced by both the German and French Codes, include degrees of

local legal customs, and even significant portions of the common law tradition

(Japan, Korea, and the Philippines). The result of Cambodia's current legal

systems debate will undoubtedly be a uniquely Cambodian system that borrows from

various other systems in a uniquely Cambodian way.

- David Doran is the

resident director of the Phnom Penh office of Dirksen Flipse Doran and Le. He

has been writing about Cambodian legal issues since 1992.