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COMMON LAW v. CIVIL LAW
Transcript of COMMON LAW v. CIVIL LAW
is 'common law'?
A Common law legal system is a system of law characterized
by case law which is law developed by judges through decisions
of courts and similar tribunals. Common law systems also include
statutes enacted by legislative bodies, though those statutes typically
either codify judicial decisions or fill in areas of the law not covered
by case law.
The main principle - it is unfair to treat similar facts differently on different occasions.
The body of precedent is called "common law" and it binds future decisions. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts. If a similar dispute
has been resolved in the past, the court is usually bound to follow the
reasoning used in the prior decision (this principle is known as stare
decisis). If, however, the court finds that the current dispute is
fundamentally distinct from all previous cases (called a "matter
of first impression"), judges have the authority and duty to make
law by creating precedent. Thereafter, the new decision becomes
precedent, and will bind future courts.
COMMON LAW v. CIVIL LAW
What is 'civil law'?
Civil law is codified. Countries with civil law systems
have comprehensive, continuously updated legal codes
that specify all matters capable of being brought before a
court, the applicable procedure, and the appropriate punishment
for each offense. Such codes distinguish between different categories of law: substantive law establishes which acts are subject to criminal or civil prosecution, procedural law establishes how to determine whether a particular action constitutes a criminal act, and penal law establishes the appropriate penalty. 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. The judge’s
decision is consequently less crucial in shaping civil law
than the decisions of legislators and legal scholars who draft
and interpret the codes.
1. What is 'common law'?
2. What is 'civil law'?
3. World map
4. Main difference and future direction
and future direction
The main difference between common law and civil law concerns
the fact that in the common law system, law is interpreted what
meaning that it is "written" by judges hearing the cases. Their decisions become the 'rule of law' for all future cases that are factually similar. The civil or codified law is law that is written into statute or code books and are strictly interpreted by the courts of that country. In a country which uses civil law, the legal system is based on legal principles and codes. Any updates to the legal code must be made through legislation or other lengthy processes. Therefore, judges must make rulings based only on these codes and statutes, only analyzing
past judicial interpretations of the law for advice.
Nowadays you can see the phenomenon of mixing each of systems.
The common law develops in the direction of the growing
importance of 'written laws', while civil law system in more
depend of previously established law cases.
One third of the world's population (approximately
2.3 billion people live in common law jurisdictions or in
systems mixed with civil law. The common law constitutes the
basis of the legal systems of: England and Wales and Northern Ireland
in the UK, Ireland, the law of individual U.S. states (except Louisiana),
federal law throughout Canada and the law of the individual provinces
and territories (except Quebec), Australia (both federal and individual states),
Kenya, New Zealand, South Africa, India, Myanmar, Malaysia, Bangladesh,
Brunei, Pakistan, Singapore, Hong Kong, Antigua and Barbuda, Barbados,
Bahamas, Belize, Dominica, Grenada, Jamaica, St Vincent and the Granadines,
Saint Kitts and Nevis, Trinidad and Tobago, Nigeria, Ghana, Burma, Cyprus, Zimbabwe, Cameroon, Namibia, Botswana, Israel and many other generally
English-speaking countries or Commonwealth countries (except the
UK's Scotland, which is bijuridicial, and Malta).
Essentially, every country that was colonised at some time by England,
Great Britain, or the United Kingdom uses common law except those that
were formerly colonised by other nations, such as Quebec (which follows the
law of France in part), South Africa and Sri Lanka (which follow Roman
Dutch law), where the prior civil law system was retained to respect
the civil rights of the local colonists. India uses common law except
in the state of Goa which retains the Portuguese civil code.
Guyana and Saint Lucia have mixed Common Law and
Civil Law systems.
Common law is a peculiarly English development.
Before the Norman conquest, different rules and
customs applied in different regions of the country. But
after 1066 monarchs began to unite both the country and its
laws using the king’s court. Justices created a common law by drawing on customs across the country and rulings by monarchs. These rules developed organically and were rarely written down. In the Middle Ages, common law in England coexisted, as civil law did in other countries, with other systems of law. Church courts applied canon law, urban and rural courts applied local customary law, Chancery and maritime courts
applied Roman law. Only in the seventeenth century did
common law triumph over the other laws, when Parliament
established a permanent check on the power of the English
king and claimed the right to define the common law and
declare other laws subsidiary to it.
1. Place, where justice rules.
2. Process, which is connected with collecting unwritten rules and forming a legal book consists of acts.
3. Person who makes decisions on legal cases.
4. The most important feature of
common law - this is foundation of this system.
The term civil law derives from the Latin ius civile,
the law applicable to all Roman citizens. Its origins and
model are to be found in the monumental compilation of
Roman law commissioned by the Emperor Justinian in the sixth
century CE. While this compilation was lost to the West within
decades of its creation, it was rediscovered and made the basis for
legal instruction in eleventh-century Italy and in the sixteenth century
came to be known as
Corpus iuris civilis
. Succeeding generations of legal
scholars throughout Europe adapted the principles of ancient Roman law
in the Corpus iuris civilis to contemporary needs.The birth and evolution of
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, and it held out the possibility of a comprehensive legal code
providing substantive and procedural law for all situations.
The civil law tradition developed in continental Europe at the same
time and was applied in the colonies of European imperial powers
such as Spain and Portugal. Civil law was also adopted in the
nineteenth and twentieth centuries by countries formerly
possessing distinctive legal traditions, such as Russia and
Japan, that sought to reform their legal systems in order
to gain economic and political power comparable to
that of Western European nation-states.
France, Belgium, Luxembourg,
Quebec (Canada), Louisiana (U.S.), Italy, Romania,
the Netherlands, Spain, and their former colonies;
Germany, Austria, Switzerland, Latvia, Estonia,
Roman-Dutch, Czech Republic, Lithuania, Croatia, Hungary,
Slovenia, Slovakia, Bosnia and Herzegovina, Greece, Brazil,
Portugal, Turkey, Japan, South Korea, Taiwan (Republic of China) and Thailand;
Denmark, Finland, Iceland, Norway, and Sweden.
(except Hong Kong and Macau) is a mixture of civil law and socialist law.
Some systems of civil law do not fit neatly into this typology, however. The Polish law developed as a mixture of French and German civil
law in the 19th century. After the reunification of Poland in 1918,
five legal systems (French Napoleonic Code from the Duchy of
Warsaw, German BGB from Western Poland, Austrian ABGB
from Southern Poland, Russian law from Eastern Poland,
and Hungarian law from Spisz and Orawa) were
merged into one.