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Civil Law vs Common Law

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Common Law vs. Civil Law

There are nearly 200 nations in the world, each with their own distinct legal system based on one of the four major legal systems: common law, civil law, socialist law, and religious law. The majority of countries today follow either common law or civil law. Here in the United States we practice common law, as opposed to countries like France and Germany, which practice civil law. There are several differences between these two legal systems, however, common law in the United States would not be what it is today if it weren’t for traditions of civil law.

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Furthermore, the traditions of civil law are reflected in many regions of the United States due to their European roots.

Common law, also referred to as Anglo-American law, is utilized in countries whose prominent language is English. Common law developed in England under an adversarial system from judicial decisions that were based in tradition, custom, and precedent. Before the Norman Conquest in 1066, English residents were governed by undocumented local customs that varied within each community, and were enforced in an often arbitrary fashion.

After the Norman Conquest, medieval kings began to consolidate power and create new institutions of royal authority and justice. New forms of legal action established by the crown functioned through a system of royal orders known as “writs”. These orders provided certain solutions for a certain types of wrong doing.

In addition, common law forms a major part of the law of many nations, especially for those with a history as British, territories or colonies. In common law countries, court cases are initiated where one party accuses another of having violated the law. The judge’s role is very limited, simply to advise the adversaries and the jury of the law. Primarily, the lawyers are in charge of the case.

On the other hand, civil law is the oldest family of law and dates back to the Roman Empire. The civil law tradition developed in continental Europe and was applied in the colonies of European imperial powers such as Spain and Portugal. Both Latin and Germanic universities in Europe preserved these traditions after the fall of the Roman Empire. In the Middle Ages, common law in England coexisted, as civil law did in other countries, with other systems of law. In the seventeenth century, Parliament established a check on the power of the English king and claimed the right to define the common law and declare other laws subordinate to it. During the early modern period while a national legal culture in England was evolving and at the same time, the growth of national legal systems in civil law countries was evolving as well.

According to our textbook, the common-law heritage is different from that of European civil law. It claims that civil law came out of the pristine atmosphere of the university system, and common law arose from the muck of courtroom battles. Three key characteristics of this common-law heritage emerged, one, judge-made law, two, use of precedent, and three, uncodified regulations.

Common law does not use codes, therefore it would be “uncodified”, which means that there is no comprehensive set of legal rules or statutes. While common law relies on some scattered statutes, which are legislative decisions, it is very much based on the judicial decisions that have already been made in similar cases, also known as “precedent”. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as year- books and reports. The opposition between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence—the study and theory of law— in civil law countries, and the growing importance of statute law and codes in common law countries.

The precedents to be applied in the decision of each new case are determined by the pre- siding judge. As a result, judges have an enormous role in shaping American and British law. Common law functions as an adversarial system, an argument between two opposing sides held before a judge who moderates. A jury of everyday citizens without legal training decides on the facts of the case. As American citizens we are entitled to trial by jury of “peers”, although these people are merely just serving jury duty. The judge then determines the appropriate sentence based on the jury’s verdict.

Contrarily, civil law uses codes, making it “codified”. In addition, civil law is a body of law characterized by a compilation of laws in writing. Civil Law is contrasted with common law, which is a compilation of judicial opinions. Countries with civil law systems have continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense. Such codes distinguish between three different categories of law. Substantive law establishes which acts are subject to criminal or civil prosecution. Procedural law establishes how to determine whether a particular action constitutes a criminal act. And thirdly, penal law establishes the appropriate penalty.

In a civil law system, as opposed to a common 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 charges, investigates the matter, and decides on the case, he or she works within a framework established by a comprehensive, codified set of laws. The judge’s decision is consequently less crucial in shaping civil law than the decisions of legislators and legal scholars who draft and interpret the codes.

The American legal system stands firmly within the traditions of common law brought during colonization by the British. However, civil law traditions maybe found within state legal traditions across the United States. Many of the southwestern states reflect traces of civil law influence in their state constitutions and codes from their early legal heritage as territories of colonial Spain and Mexico. California has a state civil code organized into sections that reflect traditional Roman civil law categories pertaining to persons, things, and actions. Another example is the state of Louisiana, where state law is based on civil law as a result of Louisiana’s history as an Acadian and Spanish territory prior to the Louisiana Purchase in 1803. The legal system in the state of Louisiana stems from the “Civil Code” established by Napoleon Bonaparte in 1804. Four years before Louisiana became a state in 1812, the former French and Spanish colony adopted a version of the Napoleonic Code.

The Napoleonic code prohibited privilege based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified. The Napoleonic Code was also the first modern legal code to be adopted with a pan-European scope, and it strongly influenced the law of many of the countries formed during and after the Napoleonic Wars. The Code, with its stress on clearly written and accessible law, was a major step in replacing the previous feudal laws. In theory, a judge in Louisiana determines a case based on his or her own interpretation of the civil law code, not those of prior courts. In the other states, judges are supposed to make decisions based exclusively on previous rulings. In practice, the two systems often work the same. Louisiana judges have the benefit of 200 years of case history, even if case law isn’t used as the true basis for their rulings. And judges in other states can stray from a legal precedent if they deem it exceptionally unjust.

The system of civil law in Louisiana differs from the other “common-law” traditions in the other 49 states in terms of procedure. Rulings in the French-influenced system derive from direct interpretation of the law; rulings in the common-law system give greater authority to legal precedent.

I find it interesting how in a country that practices the common law legal system, there is still an influence of civil law in American legal tradition that dates back to the Roman Empire. Although it doesn’t surprise me that our country would have sort of a “blend” of legal systems, seeing as each state has a distinct cultural background dating back from who first settled in the territory. I think that states like Louisiana are more traditional and culture-based due to their sustaining of the civil law system

Works Cited

“The Common Law and Civil Law Traditions.” The Common Law and Civil Law Traditions. N.p., n.d. Web. 23 Sept. 2013.

“Is Louisiana under Napoleonic Law?” Slate Magazine. N.p., n.d. Web. 24 Sept. 2013.

“Legal Systems of the World.” Ramapo College. N.p., n.d. Web. 22 Sept. 2013.

Neubauer, David W., and Stephen S. Meinhold. Judicial Process: Laws, Courts, and Politics in the United States. 6th ed. Boston: Wadsworth, 2013. Print.

Cite this Civil Law vs Common Law

Civil Law vs Common Law. (2016, Jul 21). Retrieved from https://graduateway.com/civil-law-vs-common-law/

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