Common Law Foundations
Common Law Foundations
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
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