"Common Law and Civil Law"

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Martin-Luther-Universität Halle-Wittenberg

Fachbereich Sprach- und Literaturwissenschaften

Institut für Anglistik und Amerikanistik

Wissenschaftliche Seminararbeit

Zum Proseminar „Einführung in die Großbritannien Studien –

Tradition and Reform of the British Political System“

Thema: “Common Law and Civil Law”

Eingereicht von:

*****************************                                        WS 2003/04

Matr.nr.: **********                                        Datum: 09.November 2004

Fächerkombination: ************

Gutachter:

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  1. Introduction                                        
  2. Tradition and History
  1. The Common Law Legal System
  2. The Civil Law Legal System
  1. Facts about the Legal Systems of Common Law and Civil Law
  1. Fields of Law
  2. Sources of Law
  1. Equity
  2. Custom
  3. Legislation
  4. Case Law
  5. European Law
  1. General Concepts
  1. The Doctrine of Precedent
  2. Jurisprudence over Doctrine
  1. The Courts
  2. The Legal Profession
  1. Solicitors
  2. Barristers
  3. Judges and Other Assistants of the Courts
  1. Critical Comment
  1. Administrational Matters
  2. And Montesquieu…?
  1. Summary

  1. Introduction

What is law? Law is “[M]ore than just legal rules but a social institution of fundamental importance” (Koh, 2003:6). Law is a set of rules integral to the creation and maintenance of social order, a command issued from a sovereign power to an inferior and enforced by coercion and a formal mechanism of social control. Law is also subject to other factors such as morality, custom and politics. In a few words: “[…] a body of rules enforced by the power of the state.” (Budge, 2004:488)        

What is then, a legal system? A legal system consists of many different laws, rules, statutes, codes and administrational bodies that together form a system. Its main goals are to maintain the social order of a country by thrusting laws upon its society, to control through an executive power that these rules are regarded and obeyed by the citizens and if this is not the case sanction the people who disregarded the rules through punishments ordered by courts or other administrational bodies. Furthermore, a legal system is in charge of setting up principles what should be done in certain areas of law to make actions enforceable before court and principles which force people to compensate those whom they cause damage to. Therefore a legal system could be described as an operating set of legal bodies, procedures and rules. There are many different legal systems to be found all around the world, the three most influential being the Civil Law, the Common Law and the Socialist Law. Other legal traditions including Moslem law, Hindu Law and African Tribal Law do not have much influence outside the borders of the regions where they are practised. However it is obvious that the world national legal systems are moving closer together because of globalization.

The task to give a short insight but also a complete overview of a legal system is not an easy one. One can look at a system from different points of view, with different aims and, most of all, from a different legal background. This essay’s aim is to give an overview of the Common Law Legal System of England and Wales including a comparison with the Civil Law Legal System of continental Europe. On the one hand this essay tries to concentrate only on the roughest structure of both systems (emphasising explanations of the common law rules), not expecting much legal knowledge of the reader, on the other hand give a critical comment on the positive and negative aspects of both legal traditions.

 

  1. Tradition and History
  1. The Common Law Legal System

“A legal tradition is […] the general culture underlying a family of similar legal systems” (Tetley, 2000:3).

Common Law on the one hand is the term used to describe firstly the legal system practised in the United Kingdom, on the other hand the foundation of private law of  England, Wales, Ireland, forty-nine US states, nine Canadian provinces, former member countries of the British Empire and the Commonwealth (Tetley, 2000:5). The legal systems of all of these countries derive from the Common Law developed in England from the 11th century onwards. Originally this was only the term for the system of law which was introduced by the Norman conquerors after the Norman conquest 1066. Before that, during Anglo-Saxon times, there used to be various so-called “popular courts” (Sieper 1989:181) which were presided over by royal officials. There was no uniformed legal system, because the country was divided into various little kingdoms, all having their own laws. The Norman Conquest of 1066 brought a complete change to the system. The former feudal system was replaced by a united kingdom and so-called “circuit judges” (Koh 2003:21) were sent out from London to adverse trials throughout the country and therefore replace the old county customs by the rules of the common law, newly introduced under Henry II (Sieper, 1989:182). It was not until the middle of the 13th century that the common law system was fully accepted by all citizens of the United Kingdom.

Early common law was characterised by an obsession with procedure, a system of so-called writs, writs being official documents of the King commanding an act or forbearance ordered to a sheriff. In the middle of the 14th century these writs were summarised in a Register of Writs. Because of the fact that every writ had to fit the precise facts of a dispute it was only a matter of time that the register developed into a vast amount of very specialised writs. Many people who felt to be treated unfair, because there was no writ for their special case, petitioned the king who was known as the fountain of justice. He referred these petitions to his closest advisor, the Lord Chancellor and what evolved was a new system, the system of Equity which still exists nowadays to fill in the gaps in common law. Equity will be discussed in Chapter 3.2.1 of this essay.

Nowadays’ common law is mostly characterised by principles appearing in reported judgements of the higher courts and the lacking existence of any written codes. The missing codified constitution in the common law context is somewhat substituted by the fundamental principle of the rule of law. It involves a number of assumptions concerning the legal system and can be defined as “the framework of legal rules guiding and restraining political behaviour in a liberal democratic society” (Coxall, 2003:251).

  1. The Civil Law Legal System

Civil law on the other hand is the legal system which is to be found in most of continental Europe, former colonies of European countries (e.g. many Latin American countries and Louisiana being the only US State which has the foundation for its law in Civil Law procedures) and in nations that have recently adopted civil law (e.g. Japan). The term Civil Law has to be used with caution as it is as well the term for the legal system as it names the rules concerning private affairs (in contrast to Criminal Law).

The main difference of Civil and Common Law lies in its roots. Common law has completely developed out of custom whereas civil law, which is based on written legal codes, developed out of Roman law which was first codified in the Corpus Juris Civilis of Justinian (6th century A.D.). This code, as well as nowadays’ civil law’s principles, was written in a very broad and meaningful style in order to  apply to as many disputes as possible.

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It was during the time of Enlightenment, a time of innovation in continental Europe that the thought of codifying legal principles in order to inform all citizen’s of their rights evolved. All great codes of Europe were introduced during that period of time: the Preußisches Allgemeines Landrecht in 1794, the French Code Civil in 1804, the Austrian Allgemeines Bürgerliches Gesetzbuch in 1811, the German Bürgerliches Gesetzbuch in 1900, and the Swiss Zivilgesetzbuch und Obligationenrecht in 1907/11 (Kastendiek, 1999:186). Only on the British Isles the thought of codification of law never emerged (Weber, 1998:186).

 

The question now is where the ...

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