Civil vs Common law jurisdictions Flashcards
State a definition of a civil law jurisdiction
A Civil law jurisdiction or ‘inquisitorial’ method is where Ecclesiastical and military law both have their own forums for litigation with their own procedures. Civil law jurisdictions tend not to have binding case law.
They do, of course, have litigation but cases do not coalesce into a self-standing system of legal principles. The foundation of many codified civil law is Roman law.
Explain what is meant by a common law jurisdiction/why it differs from a civil law jurisdiction
The key difference between the English legal system and other legal systems across Europe is that the English legal system is a common law adversarial system.
A common law jurisdiction has a system of binding judicial precedent which generates a body of case law.
Explain some of the key features that are unique to a common law jurisdiction
- Judicial Precedent
- Body of binding Case law
- Statutory interpretation
The process by which courts interpret and apply legislation is key in the UK as parliament was created in a common law system as opposed to civil law. In most civil law jurisdictions legislators aim for statutes to be comprehensive and continuously updated legal codes. These combine very general core principles which are often exhaustive codification detailed rules.
In common law jurisdictions the body of legislation like case law, tends to grow organically. It is rare for status to attempt to provide an answer for every situation in which a state may be relevant. The common law frequently fills the gaps left, intentionally or not, by legislators.
Explain the arguments for and against the argument that Judges are legislators in the UK’s common law system
Arguments that they are:
Due to our system of judicial precedent and binding case law judges and the courts do have a lot of legislative power.
England & Wales being a common law jurisdiction means there’s a significant place for case law and because judges make law they are somewhat legislators in that they do make the law just not in the same capacity as parliament do.
Certain areas of law are largely judge made ie; contract formation, negligence, equity etc with little statutory intervention.
Judges also make law to fill gaps in statutes especially by interpretation of them which is sometimes referred to as ‘interstitial’ law-making.
however even the supreme court doesn’t have the power to overrule any legislation, it does however have the capacity to make a declaration of incompatibility under s 3 HRA 1998, though it has no formal effect on the legislation concerned.
Arguments that they are not:
Key point 1 - Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy holds that the legislative body has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies.
The now largely defunct ‘declaratory theory’ in which its maintained judges merely declare the law and dont make it. This is reminiscent of the civil law approach where judges decide on facts of the case however this simply isn’t the case in england and wales in the common law system.
The argument that Judges do legislate but they do not make law -
It’s arguable that the extent of judicial laq-making in many common law countries is overstated Many argue judicial law making is largely ‘interstitial and so just fils he gaps in statutes and ultimately the statutes there filling the gaps between or interpreting are created by parliament and so they are the primary source of law, thus the judges aren’t creating the laws or statues
