Common Law Civil Law Essay

665 words - 3 pages

CIVIL-LAW AND COMMON LAW TRADITION: ACOMPARATIVE APROACHCivil law primarily contrasted against common law. The significantdifference is that, historically, common law was developed bycustom whereas civil law was developed by legal principles and theinterpretation of doctrinal writings rather than application of facts tolegal fictions. 'Common-law is extremely decentralized in terms ofthe source of law (making place for evolving cultural changes) ishighly centralized in its administration because of the weight ofprecedent. On the other hand, the civil-law which is centralized inits source leaves from for a great deal of ad hoc interpretation.'(Crump M.W.& Kahalas H. 1975). Therefore the civil-law is by itsnature more capable than the common-law and more adaptable tochanging situations.The Other distinction between the common law and civil lawsystems is that the role of precedent has tended to become lesssignificant. Common law courts have developed skills indistinguishing earlier judgments of which they disapprove and civillaw system, precedents have a value. Civil law countries try toensure that there is some certainty in the law and the same issuewill be decided in the same way. Civil law tradition prevents itsjudges from establishing broad principles of law in the absence oflegislation. But in the common law system there is open possibilityfor the same case.'In civil law countries, legislation is seen as the primary source oflaw. Thus, courts base their judgements on the provisions of codesand statutes, from which solutions in particular cases are to bederived.' (MacQueenH.L. 2000) By contrast, in the common lawsystem, cases are the primary sources of law, while statutes areonly seen as incursions into the common law and thus interpretednarrowly.Furthermore, separation of powers is differently in civil law andcommon law countries. 'Some common law countries, especially theUnited States, judge are balancing the power of the other branchesof government.'(Renz,D&John, E.C. 1985). By contrast, in civil lawcountries judges are only applying the law. There are, however,sociological differences. 'Civil law judges are usually trained andpromoted separately from attorneys, whereas common law judgesare usually selected from accomplished and reputableattorneys.'(Renz,D&John, E.C.1985)The structure of courts is...

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