Civil and Common law Countries
Discuss the main difference in the nature and development of source of law between Civil and Common law countries. Introduction During the development of civilization, it came to the stage when some regulations were needed to apply some restrictions on how the people should interact with one another. This led to the creation of new rules in societies. As the process progressed, the very essential set of regulations was established, eliminating those that had no important rule. As a result, civil law and common law emerged in society to govern the behavior of people which are regulated by social institutions and set by the legislative authority. The law relationship with ethics and it has been developing over many centuries and always has been fluctuating in the community’s social life, traditions and moral principles. Indeed, Civil law and Common law are different and in two high distinctive legal systems. They have faced various changes since they were established. As they are not similar, features also differ. This essay takes a look into the history of the development of both systems, different aspects that set their unique features and compares with each other. Finally, considering all points conclusion will be drawn.
Historical development of Civil law The history of civil law traces its origin to the Roman Republic, emerged in the 6th century BC and became a huge military and commercial power during the period. Rome was the first empire that its customs and laws were put in writing in 451 and 449 BC and they were inscribed twelve bronze tables. These Twelve Table contained principles and constituted for all basic Roman Civil law and every table covers one important part of civil law. The leader of the Roman Republic created a magistrate’s office, considered as the praetor ship, (The Robbins Collection, 2010, p.2) to make cases out including civil matters in the 4th century. The members of Twelve Table called praetors applied the source of law when Twelve Table was the resolution of the Roman Senate and edicts of the praetors. Besides, in the 6th century the Roman Empire had been divided into western and eastern parts by invasions during the 5th century. The invasion also impacted on Roman civil law. The emperor Justinian tried to seek better ways to restore legal system through the empire and selected particular commission to collect and strengthen applicable sources of Roman law. This commission declared as a book in three stages which are well known as the Justinian Code or the Corpus Juris Civilis (De Cruz, 2007, p.56) (Body of Civil law) during a year period (from 533 to 534). The Corpus Juris Civilis was explained by great legal scholars (jurists) and had numerous groups of legal statements. Toward end of the 11th century the legal scholars who tried to advance Roman law and pursued to start the education of law to interpret and analyze the Corpus Juris Civilis. Their primary method was recognized as the gloss and the specialist of this method named as the Glossators. In the 12th century, the continuation of systematic study of Civil law in Italy, Bologna University was established and Bologna considered as the first law university in the world. Afterward, from 12th to 16th century ecclesiastical courts in Europe intensely came to Civil law. As a result family law and criminal administrated by the Catholic Church. The process of Jurists and Court got a huge faith of people and became more contemporary with the essence of witnesses and legal learned judges. It was a significance found in legal education. The source of Civil law Basically, the principal source of Civil law is Constitutional law and enacts law statutes. Constitutional law takes the highest possession at the hierarchy of sources. The basis of Civil law is finely written in a collection of standard rules and regulations appropriate for any field. This collection is set up in a classified order. In some cases, it’s considered as a compendium of similar articles given in staccato style. In addition, the hierarchy of sources or Norms consists of the “constitutional block”, comprise Civil law system, followed one after another by International sources such as: Constitutional and Parliamentary statutes, Orders and regulation. The other significant sources of Civil law are Judicial decisions, Academic and Custom writing. Some prescribed example from the top of hierarchy which regarding to constitutional block: “1958 French Constitution (de Gaulle) and the Declaration of the Rights of Man and the Citizen 1789”. Most Civil law countries, in observing to International source, are in the term Monist that means International treaties supreme above the legal norms that have not constitution. Although all statutes generally codified, there are some needs take outcomes from the referendum. Furthermore, Civil law is considered a legal designation for referring to legal theories. Principally Civil law, in the traditional sense, is used in a body of law which mainly emphasized around, overtaking problems over the delivery of peaceful decisions to non-criminal cases. The code of conduct of Civil law which is well written and it makes easy access to all citizens. The responsibility of judges is following the written word. The Civil law is the oldest legal system in the world which has still existence in practice now.
The historical development of Common law During the middle Ages, the power of English king changed and centralized and it was a main reason for the emerging Common law. The Common law was followed by the Normans in 1066 subsequent to the Norman Conquest. In this period medieval kings embarked on strengthening the power and create new establishments of royal authority and justice. The new structure of legal action created by the crown and processed through royal orders or system of writs (The Robbins Collection, 2010, p.4). The royal orders functioned to supply with a particular remedy for a particular wrong while the system of writs was extremely formalized. The laws applied based upon the system of wrist and courts became so severe to achieve justice. However, the appeal to justice was directly depend on the king. In order to avoid this difficulty the king established a new kind of court, the court of equity (De Cruz, 1994, p.66) , and it was the court of the king’s chancellor. Besides, there were legal system’s royal families in Ireland before the Normans brought common law. During the 12th Century case law made by the doctrine of Precedent and made a decision by judges hold control further comparable cases. In late 12th Century Roman Civil came instead of Common law, however, Common law re-conquered its vast areas which it had before. Moreover, in the late 19th and early 20th Centuries Common succeeded over its colony and it was foundation of British common law in their legal system. The source of Common law In Common law, regulations, The Principal of Stare Descisis is frequently complicated to find sources, many emerging from centuries before. The main source law was the Constitution in Ireland and not similar to the Civil law system, it takes a high position above the other lower source of law. There is no value of Legislation if it clashes with the Constitution because the National Parliament accepts legislation to develop. However, Common law system has not got the formal hierarchy sources like to Civil law system. In common law, the constitution and domestic legislation are priority over international legislation due to an idealistic approach to international law. For instance, in Article 29.6 shows, idealistic approach in Ireland, “the international legislation must be incorporated into domestic law”. Nevertheless, in once condition, European community law precedence over national domestic law. Nowadays, the jurisdiction of common law takes into consideration business, economic, social sciences and foreign courts. The main differences between Civil law and Common lawIn Addition, there are plenty of differences between two legal systems that are Common law and Civil law. For instance, Civil law is written, whereas Common law dictated by traditions. Civil law has been endured by the courts. The foundation of the Civil law system emerged in Western Europe and established framework of the Code of Justinian and the Roman law (The Robbins Collection, 2010, p.5). The basis of the Civil law system is laws or codes which have been exactly putted in writing and codified. However, there is no meaning of codification to organize Civil law into separate entities. In the Common law system, the role of judges higher in creating laws in addition to modify laws based upon preceding cases. In a Common law, the laws of a nation depend on resolution of courts because of the justice system. The main difference between civil and common law is moving toward methodologically statutes and codes except the variation in the codification (The Robbins Collection, 2010, p.4). Most countries follow to the civil law system due to jurisdiction and legislations are the basic law source. The meaning of this, every judge and the court make its last judgment according to the statutes and codes which help to derive a proper solution for the same problems. Criminal procedure also can be the main difference between Civil and Common law. From the fact, the function of Civil law for verifying facts of the case much more active compared with Common law. Besides, in Civil law nations, the major crimes observed by applying the inquisitorial system. The other difference is not similar to Civil law, international agreements merely explain appropriate cases rather than deciding the ruling in Common law. As a result, in common law the scholarly work only applies for the justification policy due to lacking dependence. Conclusion
Taking all the points into consideration, there has been observed several factors that contribute to the differences between Civil and Common law. First of all, Civil law originated in France, but Common law was begun in England. Second one is, Common law different from case to case hinged on the customs of the society while Civil law has obtained written codes and statutes for orientation. The last one is, the judgment in Common law is different while the judges follow the codification book in Civil law. On the other hand the jurisdiction method in Common and Civil law is high controlled on the basis of ideology and legal sources and mainly the jurisdiction’s history.
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