Unit 1: Common Law and Civil Law

Unit 1: Common Law and Civil Law

Legal systems around the world vary greatly, but they usually follow civil law or common law. In common law, past legal precedents or judicial rulings are used to decide cases at hand. Under civil law, codified statutes and ordinances rule the land. Some countries like South Africa use a combination of civil and common law.
  Civil Law Common Law
Legal System Legal system originating in Europe whose most prevalent feature is that its core principles are codified into a referable system which serves as the primary source of law. Legal system characterized by case law, which is law developed by judges through decisions of courts and similar tribunals.
Role of judges Chief investigator; makes rulings, usually non-binding to 3rd parties. In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. Though the judge often brings the formal charge Makes rulings; sets precedent; referee between lawyers.Judges decide matters of law and, where a jury is absent, they also find facts. Most judges rarely inquire extensively into matters before them, instead relying on arguments presented by the part
Countries Spain, China, Japan, Germany, most African nations, all South American nations (except Guyana), most of Europe United States, England, Australia, Canada, India
Constitution Always Not always
Precedent Only used to determine administrative of constitutional court matters Used to rule on future or present cases
Jury opinion In cases of civil law, the opinion of the jury may not have to be unanimous. Laws vary by state and country. Juries are present almost exclusively in criminal cases; virtually never involved in civil actions. Judges ensure law prevails over passion. Juries are comprised only of laypersons — never judges and, in practice, only rarely lawyers — and are rarely employed to decide non-criminal matters outside the United States. Their function is to weigh evidence presented to them, and to find fa
History The civil law tradition developed in continental Europe at the same time and was applied in the colonies of European imperial powers such as Spain and Portugal. Common law systems have evolved primarily in England and its former colonies, including all but one US jurisdiction and all but one Canadian jurisdiction. For the most part, the English-speaking world operates under common law.
Sources of Law 1. Constitution 2. Legislation – statutes and subsidiary legislation 3. Custom 4. International Law 5. [Nota bene: It may be argued that judicial precedents and conventions also function within Continental systems, but they are not generally recogn 1. Constitution (not in the UK) 2. Legislation – Statutes and subsidiary legislation 3. Judicial precedent – common law and equity 4. Custom 5. Convention 6. International Law
Type of argument and role of lawyers Inquisitorial. Judges, not lawyers, ask questions and demand evidence. Lawyers present arguments based on the evidence the court finds. Adversarial. Lawyers ask questions of witnesses, demand production of evidence, and present cases based on the evidence they have gathered.
Evidence Taking Evidence demands are within the sovereign inquisitorial function of the court — not within the lawyers’ role. As such, “discovery” by foreign attorneys is dimly viewed, and can even lead to criminal sanctions where the court’s role is usurp Widely understood to be a necessary part of the litigants’ effective pursuit or defense of a claim. Litigants are given wide latitude in US jurisdictions, but more limited outside the US. In any event, the litigants and their lawyers undertake to a
Evolution Both systems have similar sources of law- both have statutes and both have case law, they approach regulation and resolve issues in different ways, from different perspectives Both systems have similar sources of law- both have statutes and both have case law, they approach regulation and resolve issues in different ways, from different perspectives