9. Families of legal systems (2016)Apunte Inglés
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9. Families of Legal systems
Most nations follow one of two major legal traditions
• Common Law: From England to the British colonies (Judicial decisions)
• Civil Law: From the continental Europe to the colonies of the European imperial powers (Spain, Portugal, France)
Countries formerly possessing distinctive legal traditions adopted Civil Law tradition later to gain economic and political
power. Ex: Japan, Russia (19th and 20th centuries)
Common Law System
An uncodified system. There is no comprehensive compilation of legal rules and statutes, but only some scattered
statutes or laws (legislative decisions). The decisions are taken judicially, according to the precedent (judicial decisions
that have already been made in similar cases).
“Stare decisis” —> From the Latin phrase “stare decisis et non quieta movere” (to stand by decisions and not disturb the undisturbed). Courts are obliged to follow precedents and not disturb established law. If, however, a later dispute is factually distinct from the previous case, judges can distinguish between the cases and create a new precedent based on the new facts.
A. The precedent, the key concept. The precedents to be applied in the decision of a new case are determined by the presiding judge. To ensure consistency, courts abide by precedents set by higher courts examining the same issue.
The precedents are maintained over time through the records of the courts and documented in collections of case law (yearbooks and reports).
B. The judge, the key role. Judges have a very important role in shaping the law In a trial, however, the judge moderates in a contest between two opposing parties who act before him. After the decision on the facts of the case taken by a jury composed by lay people, the judge determines the appropriate sentence based on the jury’s verdict Civil Law System A codified system. There are comprehensive, continuously updated legal codes that specify all matters that may be brought before a court, the applicable procedure and the appropriate punishment for each offense.
A. The law/statute, the key concept.
A. Substantive Law. Establishing the acts subjected to criminal or civil prosecution.
B. Procedural (criminal) Law. Establishing how to determine whether a particular action constitutes a criminal act.
C. Penal Law. Establishing the appropriate penalty.
B. The judge, the more active role. The judge establishes the facts of the case and applies the provisions of the applicable code. In a trial, the judges often bring the formal charges, investigate the matter, decide on the case. But They are subjected within a framework established by a comprehensive and codified set of laws. Thus, their role is less crucial in shaping the law than the decisions of legislators and legal scholars who draft and interpret the codes.
The origins of both traditions A. Civil Law (Ius civile). The law applicable to all Roman cives or citizens. The civil law tradition is generally traced back to the code of laws compiled by the Roman Emperor Justinian around the 6th century, and later rediscovered in the 11th century in Italy. According to this idea, with the Enlightenment (18th century), rulers in various countries tried to produce comprehensive legal codes.
B. Common Law. In England, after the Norman Conquest (1066), medieval kings began to consolidate power and establish new institutions of royal authority and justice. The ‘writs’ or royal orders provided a specific remedy for a specific wrong. One of the most famous ‘writs’ is ‘Habeas corpus’. Still ‘in force’ as a warrant in common law countries, a protection against unlawful detention.
A ‘writ’ of habeas corpus called the prisoner to appear in court to determine whether he was being detained under lawful authority. The evolution of the system of ‘writs’. During the Middle Ages the ‘writs’ or royal orders, which provided a specific remedy for a specific wrong, became so extremely formalized that the laws applicable by the courts often were too rigid to properly achieve justice. Due to the difficulty of getting a further appeal to justice through a new writ by the king, a new kind of court was created. The court of equity or court of Chancery (The King’s Chancellor). They were authorized to apply principles of equity based on Roman Law and Natural Law to achieve a just result. Courts of Law and Courts of Equity functioned separately until the ‘writs’ system was abolished in de the middle of the 19th century A comparison chart of both traditions CIVIL LAW COMMON LAW Core feature Core principles are codified into a referable system which serves as the primary source of law.
Case law system. Law is shaped by judges trhough decisions of courts.
Sources of law Constitution, legislation, custom, general principles of law, jurisprudence.
Constitution (not in the UK) legislation, statues and subsidiary legislation, judicial precedent, custom.
The role of the precedent Only the judicial decisions of administrative courts are mainly binding outside the original case.
The judicial decisions are always binding for the future and present cases. The ruling of the last court that a case visits remains the final, binding verdinct and may later be used to argue similar cases.
The role of legislation Legislation is the basaes of the decisions. The judge applies the provisions of the applicable code and makes rulings.
When judges create a new law by interpreting legislation, they can override the literal reading of the legislation itself. However, judicial decisions must be consisten with the Constitution (if there is one).
Often, the legislature will respond by amending or enacting new law in accordance with the court decisions or in order to fill gaps in case law.
The role of the judge The judge is the chief investigator.
The judge asks questions, demands evidence and establishes the facts of the case through witness examination. The judge applies the provisions of the applicable code and makes rulings, usually non binding to third parties.
The judge makes rulings, sets precedent and referee between lawyers. The judge decides matters of law and, when there is no jury, decides also the facts.
Role of the jury The opinion of the jury may not have to be unanimous. Juries are present almost exclusively in criminal cases. In this cases the judge ensure law prevails over passion.
Juries are composed only by lay people. They are rarely employed to decide non-criminal matters outside the United States. Their function is to weigh evidence presented to them.
The role of the legal representation The role of the lawyer is to advise a client on legal proceedings, write legal pleading and help provide favorable evidence to the investigative judge. In a trial, lawyers present arguments based on the evidence of the court finds.
The lawyers of both parts argue their side of the case and ask questions of witnesses, demand production of evidence, and present cases based on the evidence they have gathered. The judge and the jury listen to both sides to come to a conclusion about the case.
CIVIL LAW COMMON LAW Task of evidence taking Evidence demands are within the sovereign inquisitorial function of the judge or the court, rather than within the lawyers’ role.
It is considered a necessary part of the litigants’ effective pursuit or defense of a claim. this role is widely exerted by lawyers in US jurisdictions but not outside the US, where is considered to be a more limited possibility.
Constitution There is always a Constitution. It is generally based on a code of laws or codes applying different areas.
Common law countries may not always follow a constitution.
A “source of pride” The civil law system is more stable and fairer than common law systems because laws are stated explicitly and are easer to discern.
The common law system is more flexivle and thus, it can quickly adapt to circumstance without the need for Parliament to enact legislation.
Legal traditions all over the world A. Civil law: It is widespread in approximately 150 countries. From the continental Europe to the colonies of the European imperial powers (Spain, Portugal, France) and other countries formerly possessing distinctive legal traditions (China, Japan, Russia) B. Common law: It is found in approximately 80 countries that are former English colonies or have been influenced by Anglo-Saxon tradition. United States, Australia, India, Canada, Pakistan, Hong Kong Evolution of both systems: many systems are nowadays a mixture of the two traditions, giving them the best of both legal words.