A customary law system is a system based on long-standing traditions in a particular community. Traditions are so deeply rooted in society that the courts recognize them as enforceable rules. However, customary law is rarely interpreted and applied by the government. Instead, the selected leaders of the group usually apply the laws of custom. As a result, customary laws are usually not written down and are only revealed to members of the group. Today, the common law is found in closed and isolated communities combined with common law or civil law systems, allowing them to coexist with systems of government in a hybrid system. True or false: In a common law system, a crime (such as burglary) would be repaired by financial compensation to the victim. Israel also uses certain religious laws and courts to decide cases.51 For example, religious courts in Israel include Jewish rabbinical courts, Sharia Islamic courts, Druze religious courts, and ecclesiastical courts of the 10 recognized Christian communities. In Israel, these courts are limited to a few specific family law issues.

The secular judicial system decides all other matters. In one case, the judge told people in the courtroom that the accused was innocent and free to leave because of the decision made three years ago in a similar case. The judge`s decision was based on law (civil/customary). This section examines the key features of each system and highlights areas of particular importance for PPP projects: In the United States, certain customary tribal rights may be applied to tribal lands recognized by the U.S. government.56 However, the U.S. government exercises some control over tribal rights systems in the United States. There is a growing global movement to recognize tribal autonomy and customary law systems.57 For example, some Maori customary rights are now recognized in New Zealand.58 These two systems, common law and civil law, are the most widely used legal systems in the world. They differ in the weight they give to judicial precedents and their views on the subject matter of the judicial proceedings. Most countries in Europe and South America use a civil justice system.47 A civil law system is based on comprehensive legal systems that contain all the laws governing the country. Case law – that is, judicial decisions – is secondary to these codes. The decisions are binding only on the parties to the dispute, and do not constitute a precedent for subsequent cases on the same issues. While lawyers consult previous decisions when advising clients, judges are rarely required to follow precedents.

For this reason, legal codes tend to be more extensive and detailed than in common law systems. Countries that follow a common law system are generally those that were former British colonies or protectorates, including the United States. The island of Guernsey is another example of customary law. Although it is one of the Channel Islands off the coast of England, Guernsey is not part of the United Kingdom. The legal system of Guernsey derives from the medieval power of the monarch, the Duke of Normandy.53 The former Duchy of Normandy is an influential source of law in Guernsey. Duchestic laws developed in two periods, the Old Custom of 1199-1538 and the Reformed Custom of 1538-1804.54 The legal system of Guernsey also contains elements of English common law and modern statutory law enacted by the island`s elected legislature. Guernsey enjoys almost complete autonomy over its internal affairs, and the country determines many issues on the basis of old customary laws, with elected bailiffs and juries making decisions.55 In civil justice systems, court cases are judicial inquiries to determine how the facts fit into the already established codes applicable to the situation. The judicial system is designed in such a way that the jurisdiction of each court is a specific type of code: tax courts, administrative courts, maritime courts, constitutional courts, etc. Countries that follow a civil justice system are usually those that were former French, Dutch, German, Spanish or Portuguese colonies or protectorates, including much of Central and South America. Most countries in Central and Eastern Europe and East Asia also follow a civil law structure.

Which legal system is the most widespread in the world? The system is more inquisitorial than adverse. The trial consists of a series of sessions, hearings and written communications during which the judge testifies. The judge prepares the issues to be decided on the basis of discussions with the parties. Generally, the judge questions witnesses and may include or exclude any questions submitted by lawyers when preparing questions. Finally, the judge decides the issues and gathers evidence before announcing a decision.48 It is only at the last hearing that lawyers and parties argue before the judge. If there is a jury, its members are usually not recruited from the public, but selected on the basis of their expertise in the respective field. While ordinary juries are rare in civil justice systems, they are increasingly used in serious criminal cases. In the area of infrastructure, it should also be noted that some forms of infrastructure projects are mentioned in civil law systems with well-defined legal concepts. Concessions and leasing have a certain technical meaning and structure that may not be understood or applied in a common law country. Caution should therefore be exercised in the flexible application of these terms.

This is explained in more detail in the framework of the agreements. In a common law system such as that of the United States, the courts` reliance on precedent is called stare decisis, or a policy of using past court decisions to interpret written laws and apply those laws appropriately to the facts of this case.45 The court interprets written laws. as well as those interpretations and applications of precedents from previous interpretations. form what is meant by common law today. Precedents are crucial for interpreting subsequent cases, and only the same or a higher court can set precedents. The judicial process is adversarial rather than investigatory, with each party trying to convince or persuade the court to agree with their point of view.46 Summary of differences between civil and common law legal systems Courts specific to the underlying codes – thus, there are generally separate systems of constitutional, administrative and civil courts that are designed to ensure consistency of legislation and to express and interpret administrative acts containing this specific Code; A treaty that takes up a basic administrative principle and specifies exactly how it is to be applied will normally be effective. But the modification or deletion of an administrative principle may or may not be legally possible – this should be checked. For example, it may not be possible to completely eliminate the ability of a contracting authority to unilaterally change service standards. In France, the law prohibits any attempt to suspend the contracting authority`s ability to unilaterally terminate a contract. Some civil codes also provide for mandatory notice periods in the event of breach of contract, which cannot be avoided or cancelled. A civil law system is generally more prescriptive than a common law. However, a government has yet to determine whether specific legislation is needed to limit the scope of a particular restriction in order to enable the success of an infrastructure project, or whether specific legislation is needed for a sector.

For more information, see Legislation and Regulation and Organizing Government to Think PPP. In many civil law countries, a separate administrative law regulates PPP agreements. It is important to seek local legal advice to verify whether these regulations apply to a particular civil system. It is also important to note that in a civil jurisdiction, unless the contract provides that the parties have agreed to arbitration, the contract will be enforced by administrative tribunals.