Common and Civil Law Legal Systems

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  • Topic: Common law, Civil law, Legal systems of the world
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  • Published : March 20, 2010
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Common and Civil law legal systems

According to Zimmermann there are "as many legal systems as there are national states". Every country has its own unique legal system. However, we can allocate among them three main legal systems. These are: Civil Law, Common Law and Islamic Law. Civil and Common Laws are the most influential legal systems in the world, especially in its Western part. All three of these legal systems have existed and developed for many centuries. Further will follow the description of the historically appearance of each legal system separately.

Civil legal system is considered to be the oldest and the most widespread one. It also known as Continental, Roman or Romano-Germanic law. In general, Roman law consists of a combination of three main subtraditions such as Roman Civil Law, Canon Law and Commercial Law. The development of Roman Law cover more than a thousand year period, starting from the publication of the law of the XII Tables in Rome (450 B.C.) and the code of Emperor Justinian I Corpus Juris Civilic , which was created in period from 529 – 534 A.D and later developed by medieval legal scholars. Countries with Civil legal system: France, Germany, Japan, Russia and Uzbekistan.

The Common law evolved in England since 11th century after being conquered by the Normans in 1066 A.D.. Afterwards William I the Conqueror created central government and began to standardize the law by combining the best of Anglo-Saxon law with Norman Law which led to a creation of English Common Law. “William’s enduring legacy was the creation of highly centralized legal system”.[1] (Kritzer, H, M, 2002). The case law originally appeared when the King understood, that many cases, which he had to solve were similar and needed standardization. During the 14th century legal decisions on the common law started providing precedents for the judges to follow. In 1769 Sir William Blackstone wrote Commentaries on the Laws of England, which became the basics of the most common law statutes. These are countries with common legal system: England, United States of America, Australia, Canada, Pakistan, and India.

The Islamic Law is called Sharia. The primary sources of Islamic Law are Qur’an and Sunnah. Sharia covers all aspects of every day life of Muslims, including such things as: economics, family and social issues.

The legal systems in the World are divided into three main groups: Common, Civil and Islamic legal system, as it was discussed earlier. According to Zweigert, K. and Kötz, H. there are five main differences this two legal systems can be compared: historical background, legal investigation, legal institutions, the sources of law and last one is its ideology.

Civil and Common legal systems have both similarities and differences. The main difference between these two legal systems is that common law in England was based on customs, the court existed a long time before there were any written laws. In contrast, the Civil Law developed from ancient Roman Law of Justinian I

The second difference is the role of sources of law. At present time there are such sources of law as codes, legislation, customs, judicial decisions (case law), equity and doctrinal writing. Each legal system has several sources from those which were mentioned above. For instance, as De Cruz (2007) points out “the main sources of law in Civil law countries are the codes, enacted law, doctrinal writing, custom and decided cases.”[2] Civil legal system is codified statutory system, where the main principles and rules are stated in codes. This means that codes and statutes are valued higher and case law is considered just as a secondary source of law. On the other hand the Common law system is uncodified, “governed by case law and statutes play only an auxiliary role to precedents established by courts”[3](Kritzer, H M, 2002). Equity and case law are accepted sources of law in Common law countries. They do not exist in Civil law...
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