W102 Tma01 Civil Law Vs Criminal Law Open University Essay

1177 words - 5 pages

Question 1
Explain the differences between a common law system and a civil law system.
The main difference between the two systems is that in common law countries, case law is of primary importance, whereas in civil law systems, codified statues predominate. (Piyali Syam, 2014) I’m going to focus on three main differences which are considered to be the most important, then briefly cover other differences.
Civil law is said to be codified, as opposed to the common law which is uncodified. When something is codified it basically means that it has been written down somewhere and that all of the “rules” have all been collected somewhere. For example, the UK is said to be uncodified because all of the laws that we operate by are not collected in a single place. The laws of England and Wales have all been written down such as when an act is passed by parliament or when the court hands a decision down. The act and the decision are both written down, however, they are not all found in one place and this is why common law is uncodified.
The next point I would like to make is that judicial precedents are set to be binding in common law jurisdictions. This means that similar cases should be treated similarly. Lower courts have to follow the decisions that were made by upper courts, and matters that are dealt with in one specific way if in the past the facts are the same. With that being said, judicial precedents are not so important in civil law jurisdictions because the decisions haven’t been reached solely through the judges' own interpretation. The judges' role during civil law jurisdictions is to establish facts, ask questions, demand evidence, and to apply the provisions of the applicable code. Also, the opinions and views of the jury don't have to be unanimous as they are almost never involved in civil actions. Although they use their expertise they are not considered to be as “creative” as common law judges. The judges' role in common law jurisdictions is, to some extent, create the law and to interpret the statutes passed by parliament. Their role is therefore active and “creative” as opposed to civil law judges more passive approach. This is why judicial precedent is considered to be more important in common law countries than in civil law countries.
The final difference is that common law jurisdictions are more case law reliant and work a lot around custom and practice. In contrast, civil law jurisdictions are more reliant on legislation and constitution.
Question 2
Explain what legislative competence means in relation to devolution in the United Kingdom, including a relevant example from Scotland or Northern Ireland.
The word “devolution” refers to the process designed to decentralise a government and give more powers to other places. For example, the United Kingdom is obviously made up of England, Ireland, Scotland, Wales, and Northern Ireland. So in the process of devolution in the UK, the powers have been transferred from the UK parliament in...

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