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Common Law Foundations

Common law originated in England and has influenced many other legal systems like the U.S., Canada, Australia and India. It is law developed by court decisions rather than legislation. Judges create law by interpreting statutes and applying legal precedents to new cases. In contrast, civil law originated in Roman law and is based on comprehensive legal codes. Codified statutes are the primary source of law and judicial decisions do not set broad precedents. Other differences include civil law having non-lawyer judges, an inquisitorial court system focused on facts, and common law emphasizing adversarial proceedings between lawyers.
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0% found this document useful (0 votes)
372 views8 pages

Common Law Foundations

Common law originated in England and has influenced many other legal systems like the U.S., Canada, Australia and India. It is law developed by court decisions rather than legislation. Judges create law by interpreting statutes and applying legal precedents to new cases. In contrast, civil law originated in Roman law and is based on comprehensive legal codes. Codified statutes are the primary source of law and judicial decisions do not set broad precedents. Other differences include civil law having non-lawyer judges, an inquisitorial court system focused on facts, and common law emphasizing adversarial proceedings between lawyers.
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COMMON LAW

FOUNDATIONS &CIVIL LAW


Diksha Sharma
What is Common Law?
 Originally, the common law concept came from
England.
 Common Law System has influenced the
development of many legal systems of the world,
such as India, England, U.S.A., Canada, and
Australia.
 It is a law that is not the result of legislation.
 This law is created by the custom of the people
and decision of the court which is know as
precedents.
Common Law as made by the Judges

 When the term common law is used in


contrast to statutory law, it may either
mean :
◼ The body of law produced by precedents
(decided cases) without the aid of legislation;
◼ Occasionally, however, the invocation of the
common law refers not to previously existing law
but to the power of judges to create new law
under the guise of interpreting it. [Learning the
Law, Glanville Williams]
Main features in Common Law System:
 Not always written Constitution – U.K.
 Authority of the judgments delivered by higher courts and tribunal -
enjoy authority and powerful position. If the lower courts would not abide
by the decisions of the higher courts, the judgments of the lower court can
be challenged and it may become a nullity.
 Composition of judicial institutions- A judge, in other words, cannot be a
lay person or even a scientist. He must be a person of legal background,
either as an advocate or a judge or at least with a degree in law. This
feature of Common Law makes the judicial institutions a separate set of
professional persons.
 Adversarial system of court proceedings, and the role of judges, - In
these cases, lawyers stand before the court and attempt to persuade
others on points of law and fact, and maintain a very active role in legal
proceedings. Judges merely acting as neutral observer, judge does not
play an active role in going beyond the evidence presented by both the
adversary advocates. They depend upon the skills of the advocates who
present their best possible case before the neutral judge.
Contd.
 Acts, Statutes passed by Competent Authorities: A very important
feature of Common Law system is that though the legislations passed by
competent authorities such as the Parliament and Legislatures are given
an authoritative place which is binding on the judges, whenever the
judges find any gaps in the Acts or Statutes passed by the Parliament,
they can make suitable interpretations to fill the gap in these Acts. Facts
of every case would be so peculiar that it would be very difficult to
apply the general and abstract form of rule which may need suitable
additions and interpretations. That addition and interpretation is as
important as the bare provision of general and abstract law.
 Sources of law : 1. Constitution (not in the UK) 2. Legislation – Statutes
and subsidiary legislation 3. Judicial precedent – common law and
equity 4. Custom 5. Convention 6. International Law
 Common Law Countries: The United States; England; India; Canada
CIVIL LAW

 Legal system originating in Continental Europe. It can be traced to the old age
Roman Empire of the 5th century A.D.
 The most prevalent feature is that its core principles are codified (written law)
which serves as the primary source of law. The Acts passed by the Parliament
or the competent authorities received the highest importance in this legal
system.
 Always - Written Constitution
 Judiciary constituted in the Continental Legal System is from diverse fields as a
person of any background can be a judge in this legal system. Persons who
have specialized knowledge of any particular field may be appointed as
judges. Thus, an engineer or a Doctor or a Scientist may become a judge.
 Judges in ‘Continental Legal System’ do not make laws and their
judgements do not carry authority except in the dispute before the court. They
apply the laws made by the legislature and cannot make the law themselves.
In other words, the judgements rendered by the judges of even the higher
courts do not enjoy the status of ‘judicial precedents’ as in the Common
Law System.
CIVIL LAW
 Inquisitorial system of court proceedings; and the role of
judges - In civil law countries, judges are often described as
“investigators.” They generally take the lead in the
proceedings by bringing charges, establishing facts through
witness examination and applying remedies found in legal
codes. Lawyers still represent the interests of their clients in
civil proceedings, but have a less central role.
 Sources of Law: 1. Constitution 2. Legislation – statutes and
subsidiary legislation 3. Custom 4. International Law. Note:
judicial precedents and conventions also function within this
system, but they are not generally recognised.
 Civil Law Countries: China, Japan, Germany, France, Spain
--------END--------

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