Two Legal Systems, Two Different Legal Frameworks: Common Law vs. Civil Law
- Alya Defne Naipoglu
- 22 Şub
- 4 dakikada okunur
Have you ever wondered why our legal systems are the way they are? How have they evolved over time? When was its genesis? How do judges react differently to cases in common law and civil law systems? Today I will give you a quick overview of the workflows and the differences between the two legal systems.
A)Common Law
Out of all this fanciness, common law is based on the idea of finding precedent.But if we were to explain it further in the name of precedent; the use of precedent lies in the heart of the common law tradition. They basically stand for the adherence for the judge-made rules in particular cases that objectify reasoning logic, custom and tradition to decide a particular case. Cases that come before the judge involve a set of facts. When a judge working in a common law system cipher out the precedents that are now not compatible with the changing dynamics of the social life, they are free to modify the law to embed that changing circumstance or set of facts or social situation. Hence, they participate in what is called ‘judicial activism’, which can be defined as the ability of the judges to decide upon the cases without completely relying on the precedent nor the written laws.
Now that we have defined its framework we can talk about the origins. However we will see a deeper origin in the civil law system compared to the common law system. Common law consists of the body of law that developed over many years in England. It was improved by colonists in England and was spreaded out to America and other commonwealth countries. Unlikely, common law is uncodified and is based on court decisions and customs as we discussed, of course there are also lawmakers in the mentioned countries, but that is not the focus of this essay. If we now have a look at the approach we see that it is adversarial. Parties actually contest each other to prove their cases before the case is presented to the judge and before the judgement.
Straightaway I would like to focus on civil law. Because there is a Roman Law and Napoleonic code waiting there!
B)Civil Law
As we mentioned, civil law is basically derived from Roman Law and France’s Napoleonic code. It is based on codified laws and their interpretation throughout the case. It is adapted in most legal systems such as; Europe, South America, China, The Middle East.
In civil law systems parliament (lawmakers) is the major source of the law. The difference between common law systems is that the judiciary does not have the power to rule a case based on a previous one. Judges are solely responsible to establish the facts of the case and apply the provisions of applicable codes. In addition the trials are inquisitorial and the determination of facts are in contrast with the common law system(there are no adversarial trials), thus the civil law judge plays an active role during the trial.
Here we go to “the actual inspirations” behind this framework:
Codification
Roman Law, is -especially- Corpus Juris Civilis(Justinian Laws) is a system defined with written laws. In other words, this law is a composition of certain rules that are codified in a document. Napoleonian Laws nearly have the same logic, after the adoption of the Code Napoléon in 1804, a codified law system was established. This made it accessible by all individuals and the rules were now in a written version clearly. This actually inspired civil law to have an accessible and organised source by codification.
Specific Personal Rights and Property
In the Roman Law system, the individual’s own property usage and its transfer was valid and everyone had the option to make contracts for their own territory. The Napoleonian Law System had assimilated this to its structure and they arranged their property rights, inheritance law and law of obligations based on the Roman Law System. These led everyone to assimilate their territory and set boundaries while taking into consideration certain rules.
Individual Freedom and Equality
Roman Law System, entitled rights to their own society especially ius civile (civil law) but not equally. The hierarchical structure did not give slaves any rights. In fact, Romans actually continued the slavery system even after the steam ships were found(thus the industrial revolution). Because the slaves were cheaper than the machines! The Napoleonian Law System, had secured the individuals equality, freedom and their freehold under the influence of the France Revolution.
These two both knitted the pieces of the civil law system and gathered its traits to it.
In conclusion we have now covered the two legal systems that are actually affect all of us on many levels, including individual, societal, national and even global. I believe the first step for ensuring justice is to understand the fundamentals of the system responsible for it. I hope these made you have a little mind map and helped you to gather more information about the evaluation of these two systems.
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