القائمة الرئيسية

الصفحات

“Definition of the common law system and Comparison between the common law and civil law systems”

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





Reactions

تعليقات

التنقل السريع