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
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.
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
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.
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.
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.)
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.
nations adhering to or influenced by the common law tradition include Malaysia,
India, Singapore, Hong Kong, Australia, New Zealand, Myanmar and the
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.