COMMON LAW V CIVIL LAW
COMMON LAW(characteristics)for comparing or contrast purpose Common law systems are mostly found in former british colony and protectorate including US, it is less prescriptive than civil law system,citizens are benefited by enactment and legislation in specific fields.more often are the implied terms usage. 1)represents the law of courts as expressed in judicial decision 2)based on precedents provided by past judicial decisions,no written statues or prescribed texts 3)trial by the jury and the doctrine of the supremacy of the law(originally meant king above law,now means acts of governmentall agencies are subject to scruting in ordinary legal proceedings) 4)everything is permitted which is not prohibited by law
5)binding ,overruling through same court or legislation
Judicial precedents derive their force from the doctrine of stare decisions[lat=stand by the decided matter]i.e that the previous decisions of the highest court in the jurisdiction are binding on all other courts in the jurisdiction changing conditions,however soon make most decisions inapplicable except as a basis for analogy, and a court must therefore often look to the judicial experience of the rest of the English speaking world.This gives the system flexibility while general acceptance of cetain authoritative materials provides a degree of stability.Neverthless,in many instances, courts have failed to keep pace with social developments and it has become necessary to enact statues to bring about needed changes.In recent years ,statutes have superseded much of common law,notablyin the fields of commercial administrative and criminal law,typically however in statutory interpretation the courts have recourse to the doctrines of common law.Thus increased legislation is limited but has not ended judicial supremacy. A common law system is generally less prescriptive than a civil law system. A government may therefore wish to enshrine protections of its citizens in...
Please join StudyMode to read the full document