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  1. #11
    Reigning Bologna Princess Rajah's Avatar
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    Quote Originally Posted by Lark View Post
    To be honest I think in practice there will always be a mixed system, its important to have something universal and generalisable to all or most situations, on the other hand its important that this is not used as a kind of technical legalism, where people lose sight of the spirit by strictly obeserving the letter of the law.
    Judges can still adhere to the principles of stare decisis and impose their will on the law. This is why judges carve out exceptions and niches so they're not required to decide a case "wrongly." When you're looking at the purest rationale for stare decisis, though, you're looking at systematized application and consistency. Period.


    I... suppose. Yeah!

  2. #12
    Reigning Bologna Princess Rajah's Avatar
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    Quote Originally Posted by onemoretime View Post
    You're right, it absolutely is first-year stuff. Which is why it's completely wrong.
    You care to back up what you're saying, or are you going to persist in looking like a dolt? Either way is fine with me.


    I... suppose. Yeah!

  3. #13
    Senior Member StrawMan's Avatar
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    Quote Originally Posted by onemoretime View Post
    In the Western tradition, there are two great legal schemes that have persisted to this day: the common, or English, system, and the civil, or Roman, system. Let's take a quick look at both.
    ...
    The civil law system seeks to be a "rational" system. Instead of the law being based on custom, it is based on a previously-agreed code. This code is intended to be gapless, covering every aspect of our legal existence. Judgments are made in this system by determining what the relevant facts are (the inquisition), and once finding those facts, seeing what aspect of the code they correspond with. From there, a determination can be made of what the law is for a given set of relevant facts. Subtle legal questions are not handled by judges, but by references to the academic study of the law, while changes are solely through legislative bodies.
    Thoughts on the two systems? Which do you prefer? Do they correspond to any of the subjects we discuss on this site? Which is fairer?
    Subtle legal questions (questions not directly answered by the code) are in practice handled by the Supreme Courts in many civil law countries. Only if a ruling of Supreme Court can not be extended to a specific situation, or a part of it, would a reference to academic study be taken seriously by courts. Judges are in theory allowed to rule against an applicable supreme court ruling, but the appellate courts would just "correct" the decision.

    So, the systems in my opinion are not so far from each other. Common law lawyers study more cases, but the subtler questions are decided by higher courts in both systems.

  4. #14
    Dreaming the life onemoretime's Avatar
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    Quote Originally Posted by StrawMan View Post
    Subtle legal questions (questions not directly answered by the code) are in practice handled by the Supreme Courts in many civil law countries. Only if a ruling of Supreme Court can not be extended to a specific situation, or a part of it, would a reference to academic study be taken seriously by courts. Judges are in theory allowed to rule against an applicable supreme court ruling, but the appellate courts would just "correct" the decision.

    So, the systems in my opinion are not so far from each other. Common law lawyers study more cases, but the subtler questions are decided by higher courts in both systems.
    Certainly, convergence has been the practice in reality. The common law has undergone large codifications in those countries as well.

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