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COMMON LAW AND CIVIL LAW

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on 16 March 2014

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Transcript of COMMON LAW AND CIVIL LAW

COMMON LAW AND CIVIL LAW
I. INTRODUCTION
WHY COMPARATIVE VIEW IS USEFUL?
II. DEFINITIONS AND HISTORY
GLOBALIZATION.
ONGOING PROCESS OF EUROPEAN UNIFICATION.
IT IS NOT A COMPLETE STUDY OF THE TOPIC. THE INTENTION IS:
- Show differences between them and give examples of reciprocal influences and points of intersection between them.

- It focuses only on common law and civil law despite the existence of other significant legal traditions (Anglo-American common law, Continental-European civil law, Jewish or Hindu legal Systems...).

- The other limitation is that we will focus on private law, not on criminal law and public law.
1. CIVIL LAW:
- Origin in Roman law.
- Codified in the Corpus Juris Civilis of Justinian, and subsequently developed mainly in Continental Europe.
The civil law legal tradition itself can be divided into:

- The Romanic laws.
- The Germanic family of laws.

Law is almost entirely codified, highly systemized and structured.
2.COMMON LAW: is the legal tradition, evolved in England from the 11th Century.
Is the basis of private law for
England
,
Wales
,
Ireland
,
USA
(except from Louisiana),
Canada
(except from Quebec) and for
most colonizised countries of the British Empire
(India, Pakistan, Malaysia or Jamaica).

It appears in reported judgments.

Common law rules seem to be
more specific
than civil law rules.

3. HYBRID LEGAL SYSTEMS.
There are legal systems, which cannot be related clearly to either common law or civil law, so called hybrid legal systems.

In those legal Systems the law in force derives from more than one of these legal traditions (Scotland or Quebec)

III. DIFFERENCES BETWEEN COMMON LAW AND CIVIL LAW.
DISTINCTIVE FEATURES
Some of which are used to distinguish these systems.
1.SOURCES OF LAW.
-
TWO SYSTEMS:
1. Common law.
It is judge-made case law.
2. Civil law.
I ts codified.

-
FORM
: the codes can be not concise or detailed.




2. PRINCIPLE OF PRECEDENTS AND DOCTRINE OF "STARE DECISIS".
- This becomes a standard procedure that obtain principles of previous court decisions and applying these in the current case under discussion.
4.FUNCTION OF DOCTRINE.
• The doctrine has different functions in the two traditions:

The function of the doctrine in civil law
: to provide all
professionals
, including courts guidance for management and future decision specific cases by developing basic rules and principles of the numerous legal treatises.

The role of doctrine in common law:
to find
differences and similarities
in the resolved cases and extract specific rules of cases resolved.


5. APPOINTMENT/SELECTION JUDGES.

Common law countries:
selected and appointed from among the most experienced

Civil law countries:
judges appoint highly qualified graduates with no experience. example Germany

6. PROCEDURAL DIFFERENCES: ADVERSARIAL vs INQUISITORIAL

.COMMON LAW:
Adversary procedure.
No distinction between a barrister and solicitor and the figure of the lawyer to provide the evidence the judge decides that expert is just more convenient.
The judge does not interrogate or to parties or witnesses.
The parties to invoke the application of foreign law.
The process is characterized first collect all the evidence and then the judge decides.

.CIVIL LAW:
Judges have more functions such as the examination of the parties, witnesses, etc.
The judge is appointed expert. is required to find and apply foreign law based on the principle “
iura novit curia."
The procedure here looking out because the most likely version of the facts of the case.

- Has a pair of elements.
- The process called "distinguishing".
- Judgment having been decided "per incuriam".
3. METHOD OF LEGAL THINKING AND FINDING JUSTICE.
• The real difference between common law and civil law is divided into:
- Different methods of legal thinking.
- Different approach in the search for justice.

Additional differences between the two traditions should be noted, differences that are particularly relevant to legal practice.
• There are different roles of legislature in both systems.

IV. RECIPROCAL INFLUENCES.
1. LEGAL SYSTEM OF SCOTLAND.
The legal system of Scotland is hybrid and is due to the fact that the Scottish legal system was exposed to various influences:
• Feudalism and the Roman Catholic Church (Canon) law.
• With the called Dark Age(1329).
• Reception of Roman law after the Napoleonic wars.
• With the union of the Scottish and English parliament (1707), English common law gained influence on the Scottish law system.

2. THE EUROPEAN UNIFICATION.
The
more important sector
where civil law influenced the common law. English courts are obligated to respect and to implement the jurisdiction of EU which apply the civil law.
3. CAPITAL MARKET AND INTERNATIONAL LAW FIRMS.
The
common law is influenced by civil law
in consequence of the coercion that have important companies and large international law firms. The contracts that we found in the international framework are written in common law

4. MARITIME LAW.
This
hybrid system
belonging of civil law is influenced by the common law and has benefited from the principles and alterations of this.
5. LEGAL SYSTEM OF LOUISIANA.
Apart from Scotland, another country traditionally characterized by civil law is the federal state of
Louisiana
.

Chronology:
1731,1763,1803,1825,1870.


Today, the French has completely disappeared from justice. Most lawyers in Louisiana are not able to speak French.

Louisiana judges are required to demonstrate knowledge of common law and civil law.

In the case of Scotland, in the House of Lords, the presence of a judge trained in Scots law is guaranteed.

V.POINTS OF INTERSECTION.
1. INTERNATIONAL ARBITRATION.
2. UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS.
International Principle to establish general rules for international commercial contracts. Known as UNIDROIT Principles.
1st version in 1994
: based on common law, civil principles and codification.
2nd version in 2004:
identical to the previous version but extended with minor changes.
These principles can be applied:
1) Where the parties so agree.
2) As a model for national and international legislators.
3) As an instrument of interpretation or completion of international and national law.

3.LEGAL SYSTEMS OF QUEBEC.
Private law has a civil conception because it is a
French former colony .
In criminal law or constitutional is a typical system based on the common law as the rest of Canada .
The Civil Code du Bus
, 1866 is the Code of Canada that the influence of the French Civil Code of 1804 is reflected.
In 1991 promulgate the
Quebec Civil Code
which came into force in 1994.
The existing problem is to coexist Canadian common law with the civil law of Quebec.


That is a place of conflict and confrontation between common law and civil law. International arbitration has an
important interface
between these two rights above.

There are a
multitude of international agreements establishing rules relating to international arbitration,
for example, the so-called '' New York Convention ''.

In 1999.

In arbitration proceedings.

An arbitrator in civil law.
VI. CONCLUSIONS.
Study the comparison
between two legal traditions
such as the common law and civil law.
In conclusion :
The
common law
focuses on the analysis of each individual case. System confrontation.
The
civil law
is based on seeking justice in the abstract. System inquisitorial.
The
two traditions influence each othe
r.
Finally mention the importance of the
UNIDROIT Principles
of International Contracts Comercales.
Tendency to go to the
coexistence of different legal systems in a country
.
Full transcript