Legal Systems Flashcards
Define law?
Law is a set of rules created by state institutions which make laws through the authority of the state. The laws have sanctions which are recognised by the state and enforced by state authorised bodies
Was Roman law the beginning of common law or civil law?
Civil law
In a modern civil law system . Codes are divided into what?
Codes containing law
Codes outlining procedure.
Some civil law systems have five codes
- a civil code, criminal code, codified constitution.
Procedural code for civil law and one for criminal law.
What are the main features of a civil law system?
A written constitution based on specific codes, that outline and protect basic rights and duties.
Binding legislation- not judge- made law.
Legal scholars are highly influential
A separate court for each code
Rights are expressively conferred on citizens by the law.
When was common law recognised ?
It originated in England following the Norman conquest 1066
What are the features of a common law system?
A constitution - a collection of rules which establish & govern government
A legislature
Binding judicial decisions
Individuals can do anything not prohibited in law
Principal sources of law differences between civil and common law?
Civil- legal codes created by legislatures. They are regularly updated to determine what can and can’t come to court.
Common law- statutes and precedent
Differences between trials in common and civil law?
Both- presided over by judge(s)
However in serious criminal offences
Civil- judge will decide the law and pass sentence
Common- jury will decide, based on the facts presented. The judge will direct the jury to the law they should apply
Differences in judges role in civil and common law
Civil- - judge establishes the facts and apply the relevant legal code. They do not develop the law.
Common- establish the facts but the judge may have to interpret the law before applying it- therefore the judge can develop the law.
Fact finding differences between civil and common law
Civil- inquisitorial system. The judge is solely responsible for the conduct of the trial and will ask questions to find the truth about the facts.
Common-adversarial. Both parties represent their sides, choosing what law they want. The judge decides which side should be believed
Court structure differences between civil and common law
Both have separate courts for hearing criminal and civil matters
Civil- 1 court to conduct the first hearing of all cases relating to the codes
Common- one set of courts for civil and one set for criminal
Court hierarchy differences between civil and common law
Both- have hierarchical court structures
Civil- used to provide a system of appeals so that an authoritative statement of the law can be obtained.
Common- important to determine precedent. Lower courts are bound by higher courts decisions.
Binding precedent and role of legal scholars
Common law- binding precedent ‘ stare decisis’. Bit present in civil law
Civil law- legal scholars have influence but not in common law
When was the civil law system recognised.
Emperor Justinian ordered the preparation of a comprehensive manuscript covering all aspects of Roman law. The Corpus Juris Civilis. The purpose was to codify all the laws that existed
529 AD
What are the four main sources of law in England and Wales?
Legislation
The courts
The EU
Human rights law
