COMMON LAW AND CIVIL LAW SYSTEMS Flashcards
Common Law vs. Civil Law
Common Law: Legal principles come from judicial decisions (precedent). Judges play a key role in shaping the law. Used in countries like the USA, UK, Canada.
Civil Law: Codified laws (comprehensive legal codes). Judges apply laws from these codes without creating new laws. Used in countries like France, Germany, Japan.
Key Features of Civil Law
-Based on Roman law origins.
-it is a ‘codified’ system.
-Written codes that specify all legal matters and procedures.
-The judge´s role is to establish the
facts of the case and to apply the
provisions of the applicable code.
-Judges’ decisions are consequently
less crucial in shaping civil law than
the decisions of the legislators and
legal scholars who draft and interpret
the codes. There is little scope for
judge-made law.
-They have written constitutions
based on specific codes.
COMMON LAW
-legal principles are to be found in the
decisions of judges in individual cases.
-Operates on the principle of binding precedent (decisions of higher courts must be followed by lower courts).
-There is not always a written constitution
or codified laws.
-Judicial decisions are binding, and
decisions of the highest court can only
be overturned by the same court or
through legislation.
-Everything is permitted that is not
expressly prohibited by law.
Mixed Legal Systems
Some countries use a combination of civil and common law.
Example: Canada (Quebec follows civil law; the rest of Canada follows common law).
English Common Law
- Court decisions are central to lawmaking, with earlier higher court rulings being binding.
-Other important sources of law: Acts of Parliament (statutes), European Union law, European Convention on Human Rights.
-Judicature Act of 1873: Combined common law and equity courts, making equitable principles (e.g., injunctions) part of the legal system.
English Constitution
- it´s a Unwritten or uncodified constitution.
- Sources: Acts of Parliament, common law, EU/international law, royal prerogative, constitutional conventions and principles.
-The British monarchy plays a ceremonial role
Sources of law related to statutes:
Statutes: Only laws of constitutional significance (e.g., protecting rights, defining branches of government) are considered part of the constitution.
Common Law: Judicial decisions on constitutional matters are a source of law.
Constitutional Conventions: Unwritten but binding rules (e.g., Royal Assent is never refused).
Royal Assent: The monarch approves laws, and hasn’t refused in over 300 years.
How Statutes Become Law
Parliament: Made up of the House of Commons (elected) and House of Lords (appointed).
Bill Process: A bill must pass both Houses of Parliament and then get Royal Assent to become law.
Law-Making Process
Parliamentary Sovereignty: Parliament can make, change, or repeal any law.
Human Rights Act 1998: Courts can declare a law incompatible with human rights but cannot force Parliament to change it.
Judicial Precedent: Judges’ past decisions are important, but statutes (laws passed by Parliament) are the most significant in modern law.
Secondary Legislation: Allows quicker changes to laws through statutory instruments.
Principles of English Common Law
Parliamentary Sovereignty: Parliament has the ultimate authority to make or repeal any law.
Rule of Law: Government actions must be legally limited to avoid abuse of power. An independent judiciary is crucial for upholding this principle.
Separation of Powers: The core idea is that there are three separate functions of government. the legislature, the executive, and the judiciary.
UK Court Hierarchy
Supreme Court (replaced the House of Lords as the highest court).
Courts of Appeal.
High Courts.
Lower Courts (Magistrates’ courts).
