Common Law Versus Civil Law Systems

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Common law versus civil law systems
The two principal legal systems in the world today are those of civil law and common law. Continental Europe, Latin America, most of Africa and many Central European and Asian nations are part of the civil law system; the United States, along with England and other countries once part of the British Empire, belong to the common law system. The civil law system has its roots in ancient Roman law, updated in the 6th century A.D. by the Emperor Justinian and adapted in later times by French and German jurists. The common law system began developing in England almost a millennium ago. By the time England's Parliament was established, its royal judges had already begun basing their decisions on law "common" to the realm. A body of decisions was accumulating. Able lawyers assisted the process. On the European continent, Justinian's resurrected law-books and the legal system of the Catholic Church played critical roles in harmonizing a thousand local laws. England, in the midst of constructing a flexible legal system of its own, was less influenced by these sources. It never embraced the sentiment of the French Revolution that the power of judges should be curbed, that they should be strictly limited to applying the law such as the legislature might declare. Thus, British colonists in America were steeped in this tradition. Indeed, among the grievances enumerated in the American Declaration of Independence were that the English king had deprived the colonists of the rights of Englishmen, that he had made colonial judges "dependent on his will alone for the tenure of their offices" and that he had denied the people "the benefits of Trial by Jury." After the American Revolution, English common law was enthusiastically embraced by the newly independent American states. In the more than 200 years since that time, the common law in America has seen many changes -- economic, political and social -- and has become a system distinctive both in its techniques and its style of adjudication. It is often said that the common law system consists of unwritten "judge-made" law while the civil law system is composed of written codes. For the most part, law in the United States today is "made" by the legislative branch. To some extent, however, the judge-made law analogy is true. Judicial independence is a hallmark of the American legal system. As a co-equal branch of government, the judiciary -- to a remarkable degree -- operates free of control by the executive and legislative branches, deciding cases impartially, uninfluenced by popular opinion. The American people respect their courts and judges, even if they sometimes criticize them. In this contrast of common v. civil law, U.S. District Court Judge Peter Messitte (Maryland), considers some basic aspects of both systems and explains how the American common law system compares with that of civil law.Historically, much law in the American common law system has been created by judicial decisions, especially in such important areas as the law of property, contracts and torts -- what in civil law countries would be known as "private delicts." Civil law countries, in contrast, have adopted comprehensive civil codes covering such topics as persons, things, obligations and inheritance, as well as penal codes, codes of procedure and codes covering such matters as commercial law. But it would be incorrect to say that common law is unwritten law. The judicial decisions that have interpreted the law have, in fact, been written and have always been accessible. From the earliest times -- Magna Carta is a good example -- there has been "legislation," what in civil law systems would be called "enacted law." In the United States, this includes constitutions (both federal and state) as well as enactments by Congress and state legislatures. In addition, at both the federal and state levels, much law has in fact been codified. At the federal level, for example, there is...
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