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Legal English Issues_1
Legal English Issues_1
Legal English Issues_1
Legal English Issues_1
Legal English Issues_1
Legal English Issues_1
Legal English Issues_1
Legal English Issues_1
Legal English Issues_1
Legal English Issues_1
Legal English Issues_1
Legal English Issues_1
Legal English Issues_1
Legal English Issues_1
Legal English Issues_1
Legal English Issues_1
Legal English Issues_1
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Legal English Issues_1

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On Common Law and Civil Law traditions

On Common Law and Civil Law traditions

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  • 1. Common Law Systems Key facts to understand how the UK legal system works Copyright 2013 Jesús Lorenzo Vieites
  • 2. Common law legal systems are ones in which the importance of law formed through court decisions is central, as opposed to law formed through statutes or written legislation. Common law systems are founded on the theory that similar cases should receive similar treatment under the law.
  • 3. Common Law Systems and Civil Law Traditions: Describe two distinct legal systems. England & Wales follow the Common Law system The common law refers to the substantive law and procedural rules that have been created by the judiciary through the decisions in the cases they have heard. Common Law is judge-made & case-centred
  • 4. The common law tradition emerged in England during the Middle Ages. It was to be applied within British colonies across continents since then. The establishment of judicial decisions lies behind the basis of common law. Common Law is uncodified
  • 5. Common law is (generally) uncodified, which means that there is no comprehensive compilation of legal rules and statutes. Common law just relies on some scattered statutes –which are legislative decisions– and it is largely based on precedent, ie, all those judicial decisions that have already been made in similar cases
  • 6. Precedents are kept over time through the records of the UK courts nationwide as well as historically documented in collections of case law (i.e. yearbooks and reports) The judge is the key person in any judicial decision as he has to base his decision on (historically) established precedents So, judges moderate between opposing parties in front of a jury composed of ordinary people which decides on the facts of the case. And judges determine the appropriate sentences based on the jury’s verdict.
  • 7. Civil Law Traditions Civil law tradition, however, developed in the continent and was also applied in all those colonies pertaining to the different countries of Europe of the time. Yet, legislative decisions –as opposed to judicial ones– lie behind the basis of a civil law tradition. Civil Law is book-based, codified
  • 8. In countries where Civil law is established, a fully comprehensive and continuously updated legal codes are the norm. By way of these codes, all matters capable of being brought to court, applicable procedure, adequate sentences, etc are diligently specified. Judges just have to look into the legislation relevant to the issue to try and resolve a judicial question
  • 9. 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. A civil law system is a codified body of general abstract principles which control the exercise of judicial discretion Thence, a judge has necessarily to work within a framework established by a codified set of laws.
  • 10. English Common Law: A Historical view It was the result of changing and centralizing powers of the medieval kings After the Norman Conquest new institutions of royal authority and justice were established. Accordingly, new forms of legal action set by the Crown developed through a system of writs (royal orders) A writ provided a specific remedy for a specific wrong.
  • 11. English Common Law: A Historical view But, the system was deemed to be so highly formalized that the laws the courts could apply based on the writ system were often too rigid to achieve justice. As a result, other means to achieve an adequate justice were a must, and further appeal to justice was made directly to the king, establishing in this way the court of equity (or Court of Chancery, as it was the court of the king’s chancellor)
  • 12. English Common Law: A Historical view Courts of equity were authorized to apply principles of equity based on many sources rather than to apply only the common law, to achieve a just outcome. Courts of law and courts of equity thus functioned separately until the writs system was abolished in the mid-nineteenth century.
  • 13. English Common Law: A Historical view In the Middle Ages, common law in England coexisted with other systems of law (as civil law did in other countries). In this regard, Church courts applied canon law, urban/rural courts applied local customary law, Chancery and maritime courts applied Roman law. But it was in the XVIIth cent. that Parliament established the pre-eminence of the Common Law system over any other laws.
  • 14. Civil Law: A Historical view The Roman Empire is the cradle of the ius civile or law applicable to all Roman citizens. Civil law has its origins in the monumental compilation of Roman law ordered by Justinian in the VIth cent. A newly rediscovered compilation in the Xith century in Italy made the basis for the XVIth century corpus known as the Corpus iuris civilis.
  • 15. Civil Law: A Historical view Nearly most European countries adopted and adapted this Corpus to their particular needs. Medieval scholars of Catholic church law (canon law) were influenced by Roman law scholarship as they compiled existing religious legal sources into their own comprehensive system of law and governance for the Church. Consequence: Canon and Civil laws were taught at most universities during the late Middle Ages.
  • 16. Civil Law: A Historical view Such a powerful combination of bodies of law were quintessential for the development of legal thought tradition common to most of Europe. The medieval civil law tradition based on Roman law was thus integral to European legal development. It offered a store of legal principles and rules invested with the authority of ancient Rome and centuries of distinguished jurists.
  • 17. We have to bear in mind that, in spite of the fact that the UK English system is referred to as a common law system, and having regard to the role that courts play in the interpretation of statutes, LEGISLATION is the prevalent method of law-making nowadays. Copyright 2013 Jesús Lorenzo Vieites

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