Common law legal systems vs. Civil law legal systems.

Common law legal systemsCommon law legal systemsvs.vs.

Civil law legal systemsCivil law legal systems

Common LawCommon Law

Judge-madeJudge-made

Rules emerge from Rules emerge from individual decisionsindividual decisions

Judge seeks to Judge seeks to resolve disputes; resolve disputes; not make rules not make rules governing future governing future behaviorbehavior

Common law legal systems Common law legal systems

mostly Commonwealth countries:mostly Commonwealth countries: United KingdomUnited Kingdom CanadaCanada AustraliaAustralia

and United Statesand United States

Civil LawCivil Law

Continental Europe and Continental Europe and most of the rest of the most of the rest of the worldworld

Law is made by the Law is made by the legislative or executive legislative or executive powerpower

Differences between Civil and Differences between Civil and Common LawCommon LawLegal systemsLegal systems

CIVIL COMMONCIVIL COMMON

1. Constitution1. Constitution rrelatively recent elatively recent easily amendedeasily amended

2. Courts2. Courts oone or a panel of ne or a panel of

judgesjudges dedicated to specific

areas of law

llong standingong standing not easily amendednot easily amended

jjudge and juryudge and jury ccourts of general ourts of general

jurisdiction hearing jurisdiction hearing all mattersall matters

CIVIL COMMONCIVIL COMMON

3. Judges3. Judges separateseparate

4. Decisions4. Decisions Judge uses Judge uses

deductive reasoning deductive reasoning to determine to determine applicable sections applicable sections of Code.of Code.

promotedpromoted

Judge uses Judge uses inductive reasoning inductive reasoning about the facts, about the facts, applicable prior applicable prior cases and relevant cases and relevant law to reach a law to reach a decisiondecision

Common LawCommon Lawvs.vs.

Statutory and Regulatory LawStatutory and Regulatory Law

StatutesStatutes

formal written enactment of a formal written enactment of a legislative authoritylegislative authority

primary authorityprimary authority

RegulationsRegulations

issued by Government agenciesissued by Government agencies

secondary authoritysecondary authority

Common LawCommon Law

Case law – decisions issued by courtsCase law – decisions issued by courts

pure common lawpure common law

decisions that clarify written lawdecisions that clarify written law

Common Law Common Law vvs.s. Statute Statute

Statute/legislation Statute/legislation always takes precedentalways takes precedent

So a judge deciding So a judge deciding between a common between a common law principle and that law principle and that of statute must apply of statute must apply the latterthe latter

Approach to PrinciplesApproach to Principles

Civil LawCivil Law top-down approachtop-down approach

Common LawCommon Law bottom-up approachbottom-up approach

SourcesSources: :

http://en.wikipedia.org/

http://encyclopedia.stateuniversity.com

http://law.wustl.edu/

http://weblearn.ox.ac.uk/

Richard Powell – Law Today