WEEK 2 - Civil Law vs. Common Law Flashcards
What types of law fall under Comparative Law?
Common, civil, customary, mixed or hybrid system
What is common law?
system used the most in Canada
an adversarial system - lawyers present cases, judge is impartial and does not participate (listens)
a progressive system - updated over time, more flexible than civil
What are common law’s 2 main sources?
- legislation - laws enacted by federal government
- case law - previous decisions made by judges
History of common law
Prior to Norman Invasion, a centralized justice system
William the Conqueror
> unification and centralization to form a common law system
> Curia Regis - group of nobles who advised the king
> these judges must apply the same decisions if the context is the same (safety, certainty, and impartiality)
> need to uphold the king’s peace (nation’s ideal peace)
What is the writ system? 4 features?
common law rules - fill out a form and court will offer solution
1. court of common pleas (civil)
2. court of queen’s bench (criminal)
3. Exchequer court (revenue of king and taxes)
4. court of chancery (civil but with special circumstances)
Main features of common law?
use of precedents - previous judicial decisions
stare decisis - judges must stand by the binding precedents set in higher courts (within the jurisdiction)
SCC binds to ALL courts
> court of appeal in a province is binding to its superior court
What is the path to changing a precedent?
- overruled by a higher court
- no longer applicable due to social change (constitutionality)
- poorly reasoned and lost reputation as good law
- been reinterpreted differently by other judges
What is civil law?
The primary source is private law
> judicial precedents are not binding
Inquisitorial system - judges actively assist lawyers, are free to call for questions by witnesses, juries are generally not used
History of civil law
Evolved in continental Europe
The oldest surviving code is the Hammurabi
Renaissance - renewed interest in classical learning, including roman law
1804 French Civil Code influenced Quebec’s first code (1866) and the current civil code of Quebec (1994)
Relationship between religion and law?
most nations today seperate church and state
charter - freedom on religion and belief
Israel - basic law protects freedoms of religion, they are not separate
most Islamic law countries have a religion based legal system
What is customary law?
all humans are derived from customary law
made up of rules of conduct bound by practice, no formalized process (not enacted or indoctrinated)
often applied to Indigenous peoples
What is a hybrid or mixed system?
about half the world’s countries have mono systems based on a single legal traditions
the other half are hybrid
> common and civil - Canada, US and UK
> common or civil or customary - India, china, N&S Korea, Japan
> Islamic and other - Syria, Iran, Iran, Indonesia, Yemen
