Introduction
The involvement of jurists in legal structures other than their own and in
comparative law has been a long practice. At any rate, there has been an
unprecedented growth in this concern in the twentieth century, and in particular
after around thirty years ago. Today, for the Global Economy and many other
growing foreign exchange and development schemes, within the legal tradition of
Western Europe and of the countries which have derived their legal structures from
such roots, two main legal frameworks are developed and are also the foundation of
comparative law studies. It will not disregard certain legal structures except western
constitutional law and the common law in the Anglo-Saxon nations
Importance of the Research
The goal of this original article focus on civil law and common law is not to
derogate from the relevance and principles of other legal structures. Around the
same moment, it must always be noted that there are other variations, for example
in the rules of France and Germany, as well as between England and the United
States. That being said, in each of these two major systems, civil law and common
law, there are certain characteristics and general characteristics that can serve as a
basis for a general comparison. There are various approaches to continue and
describe criminal law, although the judicial structures is common law
Plan of the Research
The study in this research is divided into two chapters: Chapter One relates to the
definition of the term common law that is divided into three sections, and Chapter
Two determines the contrasts between common law and civil law systems, by
which is subdivided into four sections, as follows
:
Chapter I: Definition of the term common law
1.1 Common law as opposed to statutory law and regulatory law
1.2 Common law legal systems as opposed to civil law legal systems
1.3 Law as opposed to equity
Chapter II: Contrasts between common law and civil law systems
2.1 Constant Jurisprudence
2.2 General Principles of Law
2.3 Adversarial system vs. inquisitorial system
2.4 Contrasting role of treatises and academic writings
Contents of the Research
Chapter I:
Definition of the term common law
Some of the most complicated parts of practicing law being to work with legal
jargon in order to grasp the various contexts in which words can be defined, such as
the word common law
The term common law can be difficult to define as it is used in two ways:
1. To resume the legal structure that exists in some states whose legal systems
are focused on English, i.e. Scotland, Wales, Britain and the UK such as
Tasmania, New Zealand, Canada (without Quebec), the West Indies, Hong
Kong among others
2. There are three main overtones and several historical interpretations worth
mentioning in the term "common law":
a) Civil law, as opposed to contractual and administrative rule
b) The traditional legal framework as opposed to the civil law legal structure
c) Civil law as opposed to the code of law on justice
The word 'common law' has three specific examples worth mentioning:
1.1 Common law as opposed to statutory law and regulatory law
Context 1 shall establish the jurisdiction which has enacted the legislation
a) Pure common law can be defined as rising from the traditional and inherent
authority of courts to define what the law is, even in the absence of an underlying
statute or regulation. Examples include the bulk of criminal and civil law until the
20th century, and still the bulk of contract and tort law
b) Interstitial common law is defined as court decisions that analyze, interpret and
determine the fine boundaries and distinctions in law promulgated by other bodies.
This kind of common law, sometimes referred to as 'Interstitial Common Law,'
involves the substantive interpretation of the Code of the Statutory Laws and the
Rules of the Organization and the implementation of the Legislation under the Act
1.2 Common law legal systems as opposed to civil law legal systems
Connotation 2 divides "common law" states and judicial structures from "criminal
law" states
1
The secondary connotation illustrates the inherent distinction between the two
schemes from the fact that most civil courts have published codes intended to
protect certain fields of law. Current forms of law are focused on juridical
regulation, which is established on a case-by - case basis, while laws (especially in
specialized areas) play an increasingly important role
Common law and civil law activities are generally accepted to have similar
fundamental ideals (individualism, equality and human rights) and are basically
united
In the other side, in civil law contexts, a judge who rules a particular case has
greater flexibility to view the content of a statute differently and is less
predetermined
As a rule of thumb, common law systems trace their history to England, while civil
law systems trace their history through the Napoleonic Code back to the Roman law
1.3 Law as opposed to equity
The third connotation separates the concept of common law from that of justice.
Equity requires judges to enforce justice on the basis of common law and on the
basis of their decisions. When there is a disparity in the definition of common law,
fairness shall be done. The most important difference in the area of law and justice
lies in the solutions that they recommend
Common law usually allows for fines in certain cases, but justice can allow
someone to behave or not to behave in some way
Law courts can require writs that are more difficult to obtain and less versatile than
those issued by the equity courts. Although a jury will be interested in a court of
law, there is no jury present; the judge simply determines cases
Today, the historical difference between "justice" and "equity" remains relevant
where the situation is dealing with topics such as:
a) Categorizing and prioritizing land rights
b) Under the United States, it must occur to establish the entitlement to a jury trial
or that the case may be determined by a magistrate
c) The level of appeal and the degree of deference provided by the appellate court to
the ruling of the lower court under examination.
d) The treatments necessary and the laws of practice to be practiced
Chapter II: Contrasts between common law and civil law systems
A key difference between civil law and common law is that preference in civil law
is granted to theory (including the codifier’s report) over jurisprudence; whereas the
reverse is so in common law (it can be clarified by the position of the legislature in
both traditions)
The civil law forms the backbone of the political frameworks of: England and
Wales and Northern Ireland in the United Kingdom, Ireland
The Historical Origins of Common and Civil Law Systems
Several nations already have either of the prevailing constitutional traditions:
statutory law or civil law. The custom of civil law began in England in the Middle
Ages and subsequently extended across the globe to British territories. At the same
time, civil law practice was developed in mainland Europe and founded in colonies
of European colonial powers such as Spain and Portugal. Civil law was also
introduced in the nineteenth and twentieth centuries by countries that had
historically had distinctive legal practices, such as Russia and Japan, who attempted
to change their legal structures to gain economic and political power comparable to
that of Western European nation states2
2.1 Constant Jurisprudence
The primary difference between the two structures is the position of a star judgment
and the writings of law professors
The judicial definition is based on the concept of stare decisis ('what has been
decided') in order to control the enforcement of the rules in cases before a judge. As
such, judges are deemed to be "sages" of the constitution
There is one distinction in the cycle of creating legal precedents. This is a feature
related to the common law. The aim is to assess the condition in regards to what has
happened and how these actions conform under the laws that are actually in effect
The court may or may not find whether a specific precedent is applicable to the
event. If the court decides that this is important, the result of the present case can be
extended to specific cases in the future
2.2 General Principles of Law
Although certain statutes are passed on the grounds of previous judicial rulings, it is
often common for regulations to be implemented by the parliamentary phase. This
is when the idea of civil law falls into effect
Within a civil dispute, the task of a lawyer is to defend his client's interests, either
by providing an indictment or a defense. Civil law applies to civil acts that are not
deemed to be illegal. This is also necessary to pursue a legal case against a person
or an agency after a criminal trial has taken place, or sometimes though the criminal
prosecution effort has not been effective
2.3 Adversarial system vs. inquisitorial system
Common law structures appear to lend greater weight to the division of powers
between the judicial branch (which enacts statutory law) and the executive branch(which enacts procedural rule or "administrative law" in civil law systems). Civil
law structures, on the other side, also require individual officials to use both
functions
Common law courts typically have an accusation scheme. In the other side, civil
law systems often allow specific officials to use both powers
The process used in the inquisitorial system has been effectively written. All of the
perpetrators would have received details during the interrogation phase, so the
documentation will be included in the file in the form of police records
In the same way, the complainant may have already taken his case to the level of
prosecution, although he or she would have been free to amend his or her statement
in order to change his or her evidence at trial. In relation to the adversarial method,
the verdict and punishment to be carried out (if any) must be handed down by the
jurors of the court, together with the representative of the court, in spite of the fact
that the sentence has not yet been passed
2.4 Contrasting role of treatises and academic writings
The function of the legal academy is a major difference between common law and
civil law jurisdictions
Under common law, protocols are not laws, and lawyers and courts tend to use such
agreements. In the other side, in civil law jurisdictions, conventions and statements
by legal authors are usually presented in formal disclosures and debates in specific
legal concepts. These works formulate general theories on basic codes and
legislation in relation to the evolution of the legal system as a whole. Under civil
law, theory is an intrinsic aspect of the structure and is essential to its formal and
logical interpretation. Doctrine is not a recognized basis of legislation, but it has had
a significant impact on the development of legislation. It shapes the students' minds;
it gives direction to the work of the practitioners and to the deliberations of the
judges; and it guides the legislature towards consistency and systemization
Summary and Conclusion
In the common law framework, the common law lawyer actually does not matter
whether or not there is such a detailed, rational, legal structure. It is busy
determining proceedings, with the guidance of a legal precedent and with or without
the assistance of substantive implementation of laws in individual situations. If
researchers may begin seeing the bits and pieces of a system emerging from this
process, they are interested in it as a potentially useful tool; but they do not find the
development or output of such a complete and logical construct to be essential or
even significant in their ongoing work of finding justice in an endless number of
ways. And from the other hand, in a civil law country, law students are taught that
law is a science, and that the legal scientist's task is to analyze and elaborate
principles that can be derived from careful study of positive legislation into a
harmonious systematic structure
The present research shows that, within its own ethnic and historical context, each
structure has served well the community in which it operates; each has proven the
capacity to fulfill the social and economic needs of a population in continuous
change; each structure has preserved a balance between the elements of stability
and adaptation, on the one side, even though maintaining the vital qualities of peace
and protection, on the other hand, in any nation, the legal system is part of the
existence and culture of the citizens through whom it has built its needs
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