LAW SYSTEMS Every country has its own system of law as each country has
developed differently. However, there are two main traditions of law in
the world - English Common law, or Case law, and Continental, or
Roman law.
English Common law is adopted by many Commonwealth
countries and most of the USA. Continental law is adopted in
continental Europe, many countries in Asia and Africa and in former
socialist states.
English Common law has developed gradually throughout the
history and is based on customs, court rulings (precedents) and
statutes. The most important concept of English Common law is the
doctrine of precedent. Precedent is a decision made by a court on some
case that serves example for other courts to follow if the essential
elements of the case are the same. Thus, judges have to apply existing
precedents to each new case. If the elements of the case are the same as
those of previous recorded cases they have to make the same decision.
Sometimes governments make new laws (statutes) to modify or
clarify common law, or to make rules, which have not existed before.
Judges interpret those statutes and their interpretations become new
precedents. Therefore, judges do not only apply law.
Learning Law 15
They make law as their interpretations are precedents for other courts to
follow.
Another important concept of the common law is the principle of
equity. By the 14-th century people of England had become dissatisfied
with the inflexibility of common law. The courts became willing to
modify the existing common law and a new system developed which
recognized the rights that were not enforced as common law but were
equitable or just (the right to force someone to carry out a contract,
called specific performance or the right of the beneficiary of the
trust).
The courts of common law and of equity existed alongside for
centuries. An equitable ruling on the same case prevailed. The problem
was that a person had to start an action in two different courts in order
to get a satisfactory solution. For example, a person had to seek
specific performance in a court of equity and damages (monetary
compensation) in a common law court. That is why in 1873 the two
systems were unified.
Continental systems are often called codified law systems as they
have resulted from government attempts to produce a set of codes to
govern every legal aspect of life.
The legislators wanted to show that the legal rights of the citizens
originated in the state, not in local customs and to separate legislature
and judiciary. It was the state that was to make new laws, not the
courts. The courts could only apply the law that the governments had
made. Making new codes the lawmakers were influenced by the codes
produced in the 7-th century under the direction of Roman Emperor
Justinian. Thus appeared the name-Roman law.
The main concept of Continental Law is a government code
(statute). Statute is a law passed by a legislative body and written in a
formal document.
It is important not to exaggerate the differences between these two
traditions of law as many countries use both (the USA). The clear
distinction between legislature and judiciary has also weakened
(Germany, France and Italy)