Notes on Civil and Common Legal System

Topics: Common law, Law, Judge Pages: 17 (5595 words) Published: November 8, 2012
1.Compare and contrast civil legal system and common legal system Legal system is a legal framework which relates to the rules set by the government of a state to the citizen. DIFFERENCES| CIVIL LEGAL SYSTEM| COMMON LEGAL SYSTEM|

Origins| -Arbitrary (berubah2)- origin in Roman law,as codified in the Corpus Juris Civilis of Justinian, and as subsequently developedmainly in Continental Europe| -Evolutionary-the legal tradition, which evolved in England from the 11thCentury onwards.| Definition| -A legal system inspired by Roman law and whose primary feature is that laws are codified into collections. | -comprising ancient customs,judicial precedents and enacted law and so called because it was made common to the whole of England and Wales after the Norman Conquest 1066.Prior to this time there was no common system of law.-The part of English law based on rules developed by the royal courts during the first 3 centuries after the Norman Conquest 1066 (Oxford Dictionary of law)| Other Names| Continental law,Romano Germanic law,neo-Romano law| Anglo-American law ,English law ,Judge-made law| Sources of law| Statutes/legislation- civil law codes and statutes are mostly concise and do not providedefinitions but state principles in broad, general phrases| Case law, Statutes/legislation- common law codifyingstatutes provide detailed definitions and each rule sets out lengthy enumerations ofspecific applications or exceptions| Codification (The codification process derived from the Corpus Juris Civilis)| -have comprehensive codes,often developed from a single drafting event.-the codes cover an abundance of legal topics,sometimes treating separately private law,criminal law and commercial lawe.g : Codex,Digesta and Pandectae,institutiones| -Have statutes,sometimes collected into codes.they have been derived more from an ad hoc process over many years .-rules developed through the judicial decision-making process| Existence of equity| There is no comparable equity law in civil-law countries.The system orientation of the codes would not permit the growth of another branch of law outside the framework of the system.| Equity law developed in England as a legal method to soften the often harsh effects of judicial precedent or legislation;to establish different procedures that might be required for a particular issue in the interests of fairness when common law remedies were not available or could not ensure a just result in a particular case;and to deal with new problems that called for different remedies than the common law provided.| The Principle of Precedents and Stare Decisis*| civil law judges may be primarily bound to codes andreason| -the method of common law to analyze previous court decisions, to find a generalprinciple in each of them and to transfer these principles to a current dispute thatneed to be decided.-are bound by precedents rendered by highercourts. According to that, common law has a more hierarchical structure| Function of doctrine| -provide all practitioners,including the courts, with a guideline for handling and deciding of specific future cases by developing basic rules and principles from the numerous legal treatises| -modest function of doctrine incommon law to find differences and similarities in decided cases and to extractspecific rules from decided cases| Trial format| Inquisitorial/collaborative| Accusatorial/confrontational/adversarial| Role of judicial decision| -Has been negligible (diabaikan)-possibly as a result of Justinian’s dictum.-civil law judges look to code provisions to resolve a case| -precedent has been elevated (ditinggikan) to a position of supreme prominence (kepentingan)-common law judges reach for casebooks to find the solution to an issue in a case.| The role of the judge| -actively involved in the proceedings either in civil or criminal cases.-investigate and determine the facts of the case-questioning the witnesses| -sits and...
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