And Civil Law
This paper is aimed analysing the differences between common law and civil law in the UK and other European countries. It will also explore the theory behind the development of these laws and the segments of society that they cater to.
Collin put forth a viewpoint that the increased collision between public law and contractual practices has led to a disintegration of the former, resulting in the need to revise the private so that it is in tandem with the public and welfare legislation (Collins, 1999, Regulating Contracts). However, private laws and public regulation are governed by doctrines that are very different in their basic nature and whom they are meant to protect. Courts do not have the access or the understanding required of these doctrines in order to formulate effective policies. Beatson further speaks in favour of the bringing together of statute and common law by posing the question: “Why should statutory manifestations of principle identified in this way not be part of the armoury of the common law judge in determining a hard case and seeking to determine what best fits the fundamental principles of the legal system (Beatson, 2001, The Role of Statute in the Development of Common Law Doctrine)?”
For example, in the case of unfair dismissal, the common law empowers the employer to terminate a contract of employment, without defining any process or fair practice to be followed, until and unless these are mentioned particularly in the employment contract. The employment contract supersedes the law and is the only document considered by the court to determine the wrongfulness or unfairness of dismiss. As such, the employer has a free hand in the manner of dismissal and is, at most, liable to provide a fixed notice period, a term mentioned within the employment contract, fixed term contracts being the exception (Anderman, 2004, Termination of Employment: Whose property Rights?). Statutary law, on the other hand, provides for better protection of an employee’s rights.
The attributes of Common Law indicate the incomplete move the system of causes of action to the system of substantive rights and the partial categorization of real rights and personal rights have arising as a result of a standalone court system (Frank, 1981, The Importance of Roman Law for Western Civilization and Western legal Thought). It was the power of the court that converted common law into the first idea of law as a rule. Hence, law itself constitutes those rights have been protected by common law courts. This lends stability as well as flexibility to the common law system. However, this very nature makes the common law unsystematic as it is not thoroughly etched out.
Civil Law can be described as a structure of substantive rights that is different as a concept and is segregated into real and personal rights. At the law’s nucleus is the right to ownership or property and it is has been categorized into codes. The civil law system is believed to have originated in as a legal science during the Roman and Greek era, which has been passed on through periods till modern day. As the civil law has been drafted, coded and has been viewed as a system of rights, its highly systemized and transparent in nature. However, unlike the common law, it lacks flexibility to adapt to changing societal demands as the civil law follows a lengthy and tedious process for amendment.
However, the conceptual differences between civil and common laws are often exaggerated. To begin with, both the concepts have descended from the Roman law system that has formed the very basis of English, Scottish and American legal systems (Peter, 1988, The Character and Influence of the Roman Civil Law: Historical Essays). The Common Law relies heavily on jurisprudence to develop legal theories that maintain a balance between stability and flexibility while attempting to attain...