Comparative aspect of law Flashcards
What is the major source of law for civil systems and common systems?
In civil systems, the main source are codes & statutes.
In common systems, the main source is court decisions, so custom and practice
What is the reliance on precedent like in the civil law and common law systems?
It is weak in the civil law, strong in common law
What is the role of the judges in lawmaking like?
In civil law it is passive & technical, the judge is an instrument of justice that applies the law passively.
In common law it is active and creative, the judge creates the law, making customary law into actual law
What is the judicial review like in the civil and common system?
There is almost no judicial review in civil law.
There is extensive judicial review in common law, especially in the US
What is the role of academic legal research like in civil law and common law systems?
In civil law, research is extensive and can be influential.
In common law, research is secondary and is more observative
What is the court system structure like in civil law and common law?
In civil law, there are specialized courts for specific fields of law, while in common law there is a mostly unified court system with a court that deals with all areas of law
What is the major decisional stage of a trail like in common law vs civil law?
In civil law, there is an investigation and several examination hearings, while in common law there is one trail event
What is the method of trial like in civil law compared to common law?
In civil law the trial is inquisitorial/collaborative, while in common law it is more adversarial and confrontational
What is the procedural focus like in civil law vs common law?
In civil law, the focus of the procedure is factual certainty, while in common law the focus is procedural correctness
What is the procedural focus like in civil law vs common law?
In civil law, the focus of the procedure is factual certainty, while in common law the focus is procedural correctness
What are the rules for evidence like in civil law vs common law?
In civil law, evidence is permissive, so all relevant evidence may be presented. In common law, the evidence is restrictive, evidence may be excluded on certain grounds
What is review of court decisions like in civil vs common law, is there any review at all?
In civil law, there is de novo review, meaning all questions of law or fact can be reviewed on appeal. In common law, only revieq of questions of law for legal error only can be reviewed.
What is the role of the judge like in civil law vs common law?
In civil law, the judge is the manager and examiner of the witnessess. In common law, the judge is a referee between the parties.
What does the role of a lawyer look like in civil law?
The lawyer has a participatory role. He advises and informs the court, suggests applicable law to the judge, debates and opposes legal arguments. They are not the primary examiners of witnesses.
What does the role of a lawyer look like in common law?
The lawyer has a central role in the procedure. He investigates and presents facts, presents and argues applicable law, debate and oppose legal arguments and is the sole examiner of witnesses.
