English exceptionalism is often taken for granted in the narratives of legal history. England went its own way, while continental Europe received and developed a common law based on Roman law. The sources of English common law are the Constitution (not in the United Kingdom), legislation – laws and subsidiary statutes, case law – common law and equity, customary law, convention and international law. Common law countries do not always follow a constitution or a code of law. At common law, the jury system has been very heavily involved in the judicial system, juries are used in civil and criminal cases. Their job is to weigh the evidence presented to them, establish the facts and enforce the law. This common law system is based on two main principles, namely ratio decidendi (judgment can be defined as the legal principles formulated by the judge for the purpose of deciding the issue before him) and obiter dicta (observations of the judge that are not essential to the decision made). English common law has taken a much more functional and reasonable approach to the exercise of these legal functions. Legal system characterized by jurisprudence, i.e. the law developed by judges through the decisions of similar courts and tribunals. For example, the elements required to prove the crime of murder are included in case law and are not defined by law.
This article was written by Ms. Nikara Liesha Fernandez of the Faculty of Law, Christ University, Bangalore. This article is a comparative analysis of the evolution and differences between the general and Roman legal systems that prevail in different countries of the world. In civil law systems where codes exist, the main source of law is the Code, a systematic collection of interrelated articles[8] arranged by subject in a predetermined order. [9] The codes explain the principles of law, rights and prerogatives and the operation of basic legal mechanisms. The purpose of codification is to provide all citizens with morals and a written compendium of the laws that apply to them and that judges must follow. Legal texts are laws enacted by a legislator, although they are usually much longer than other laws. The Code does not contain a collection of laws or a catalogue of case law, but general principles as legal norms. [8] Other important legal systems in the world include common law, Islamic law, halacha and canon law. At common law, precedents or court decisions are used to decide these cases. According to civil law, codified laws and regulations govern the country.
Some countries, such as South Africa, use a combination of civil and customary law. Finally, the Norman conquest in 1066 produced a class of people who spoke French but wrote the laws in Latin. William the Conqueror was the first king to try to unite all these different customs and traditions into a unified legal system that the whole country would follow, and thus gave rise to the term as this law is known today, i.e. “Common Law”. The English common law system developed mainly in England and its former colonies. For the most part, the English-speaking world operates under common law. The Japanese Civil Code was considered a mixture of about 60% of the German Civil Code and about 30% of the French Civil Code, as well as 8% of Japanese common law and 2% of English law. [25] The Code contains the ultra vires doctrine and a precedent of Hadley v.
Baxendale of the English common law system. Legal systems around the world are characterized by their own unique rules and regulations to better adapt and regulate the behavior of the society in which they find themselves. Overall, however, all countries follow either a common law system or a civil or civil law system. Some countries have even developed a mixed legal system consisting of a combination of both. This is called a mixed legal system. Louisiana private law is primarily a Napoleonic system. Louisiana is the only U.S. state based in part on French and Spanish law and ultimately on Roman law, as opposed to English common law.
[22] In Louisiana, private law has been codified in the Louisiana Civil Code. Current Louisiana law has moved considerably closer to U.S. law, including public law, the judicial system, and the adoption of the Uniform Commercial Code (with the exception of section 2) and certain legal instruments of U.S. common law. [23] In fact, any innovation, whether private or public, is clearly customary. [ref. needed] Quebec law, whose private law is also of French civil origin, has developed along the same lines and, in the same way as Louisiana, has adapted to public law and the judicial system of Canadian common law. In contrast, Quebec private law has generated innovations mainly from civil sources. To a lesser extent, other states that were once part of the Spanish Empire, such as Texas and California, also incorporated aspects of Spanish civil law into their legal systems, such as communal property. Puerto Rico`s legal system shares similarities with Louisiana`s: a civil code whose interpretations are based on both the civil and common law systems.
Since the Civil Code of Puerto Rico is based on the Spanish Civil Code of 1889, the available jurisprudence is based on the age of the code and, in many cases, its outdatedness. Some peculiarities of the common law system are as follows: Professor Thomas McSweeney is Professor of Law at William and Mary Law School. His research focuses on the early common law. He is particularly interested in how thirteenth-century judges and lawyers taught and learned law.
Recent Comments