civil law and common law Flashcards
What’s the purpose of a legal system?
To regulate and harmonize the human activity within societies, and in each society the legal system forms part of the culture and civilization, as well as the history of its people.
civil law history
The term “civil law” comes from the latin words “ius civile”, which were laws that were only valid for the citizens, or “cives”, instead of the “ius gentium” that involved foreigners.
Emperor Justinian brought together the greatest jurists of his day to make a codification of all the current laws. This was an important political message, because, before the codification, there was a narrow legal system, which had a lot of insufficiencies. As a matter of fact, to compensate this loss, the office of the “praetor” was invented (a person who solved disputes).
The codification was of fundamental importance. The main laws of the roman empire are still used hundreds of years later.
common law history
The common law system originated in England, where the social, economic and political history stems from feudalism and its incidents. Furthermore, disputes were only solved at a local level.
When the king sought to establish a more important central power, he ran into conflict with the local authorities (landlords).
When there’s a union between landlords and the kingdom, the king didn’t accept the current legal system, so he found a solution in the existence of a court of the king, which would’ve interpreted all cases by ensuring uniformity.
The name “common law” refers to having a common set of rules and a common court.
In England the problem was solved by establishing a Common Court. The point wasn’t to just solve disputes, but also ensuring a uniformed and unified legal system.
legislation as the basis of civil law
In civil law tradition, the main source of law is legislation (while in common law it’s case studies), and large areas are codified in a systematic manner. Legislation takes the form of a code: a set of legislation and rules.
A civil code is a book that contains the laws that regulate the relationships between individuals.
Judicial decisions as the basis of common law
In England, when a court decided a particular case, its decision was not only the law for those parties, but it had to be followed in future cases of the same sort, thereby becoming a part of the common law.
case law
the kind of law that comes from the decision of a court.
common law
the outcome of rules generalized by past decisions.
rule of the precedent
the previous decision made by a court of law to solve a problem is binding on future decisions of a future court when solving the same issue.
ratio decidendi
the exact essential point necessary to make a decision
obiter dicta
non essential points in a case that are not binding in the ruling
what if there isn’t a precedent?
The court must apply “ratio decidendi”, but when a case is similar, but not the same, the judge has 3 options:
1) Apply the precedent
2) Make a distinction
3) Overrule: for example, in the US the Supreme Court decided to overrule a precedent in the case of legal abortions.
Judicial decisions in the civil law
It is sometimes said that in civil law the function of the court is merely to apply the written law. Actually, when a court applies a law, it has to interpret it.
However, in the civil law system, courts are not bound to follow previous judicial decisions, as there is no rule of precedent. In some countries like France and Belgium, when a certain point has been consistently decided in the same number of cases, it becomes binding in future cases.
differences between common law and civil law
Some differences between the two systems are:
1) Doctrinal materials: in civil law countries, the treaties and commentaries are expressed in the form of systematic expositions, while in common law countries there isn’t a large quantity of doctrinal writings, and they consist of analyses of decided cases.
2) Legal education: in civil law countries, the education is centered on legislation, doctrine and codification and it starts with the study of codes, while in common law it is founded on the primacy of past cases, and it starts with the study of great judges.
3) Research: in civil law it starts with the codes, in common law it starts with previous decisions.
4) Judges and courts: in common law, there is no training for judges (other than being an attorney with experience), while in civil law judges go through apprenticeships and training.
5) The method of deciding cases: civil law judges search the legislation for the controlling principle and the rules which govern the subject. Common law judges search in the previous decisions for a similar case.
6) The personal or collective character of decisions: in the continental countries, judges enjoy prestige, but always remain anonymous. In common law countries each judge has the possibility to set his point of view.
7) The manner of writing opinions and decisions: in common law, first there’s an organized exposition of the facts, then an examination of previous cases and finally a decision. In civil law, decisions are much shorter. There is a strict prohibition against the rendition of a judgement in the form of a general ruling.
8) Silence or insufficiency of the written or established law: not a problem for a common law judge, but an embarrassing situation for a civil law judge. Different countries applied different solutions to this issue.
legal order
a set of institutions and norms regulating the forms of collective organization and the rules of civilization.
sources of law
: any acts or facts which the legal order acknowledges as valid forms of normative production. In modern western law, the main sources of law are enacted legislation, jurisprudence and customary law.
