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  1. #1
    Dreaming the life onemoretime's Avatar
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    Default The common law and the civil law

    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 common law system is often said to be "judge-made" law, but in fact it is not - it is based on the customs and mores of the community. A judge merely decides cases based on this understanding of "the law." A key feature of this system is that judges can decide wrongly; a judgment that falls outside this set of customs and mores can be overturned on the principle that it is "not law." Judicial precedent holds great significance out of a sense of deference to previous judges' reasoning capacity and ability to draw an accurate interpretation of what the common law is.

    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?

  2. #2
    Senior Member Kephalos's Avatar
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    Another important part of the civil law is that it is usual for the loser in a civil suit to pay for the legal costs of the trial, which influences the decision to sue or not.

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    Analytical Dreamer Coriolis's Avatar
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    I do not know enough about either system to express a preference. Our government (in the U.S.) is often characterized as a government of laws, and not men. It is said that no one is above the law. This would seem to place the law above everyone. In one sense, this should promote impartiality, since all must follow the same law. In practice, though, it seems that man (humanity) serves the law instead of the law serving man. We must all defer to the law, however stupid, ill-conceived, and outright hurtful, until the appropriate legislative body takes it upon itself to correct the situation, something that often falls victim to the desire to be reelected.

  4. #4

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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 common law system is often said to be "judge-made" law, but in fact it is not - it is based on the customs and mores of the community. A judge merely decides cases based on this understanding of "the law." A key feature of this system is that judges can decide wrongly; a judgment that falls outside this set of customs and mores can be overturned on the principle that it is "not law." Judicial precedent holds great significance out of a sense of deference to previous judges' reasoning capacity and ability to draw an accurate interpretation of what the common law is.

    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?
    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.

    Yeah, heard absolutely terrible stories about older men, often predatory individuals, essentially seducing younger girls and celebrating the same girls eighteenth (or whatever the particular age of majority is) birthday by having sex with them and dropping them shortly thereafter to pursue others.

    That's only one example of the disgusting flaunting of good laws, I'm unsure what can be done about that besides accepting that a line has to be drawn some place, and that law is imperfect at containing and rolling back the sorts of ill behaviour which is in part established to address.

  5. #5
    No moss growing on me Giggly's Avatar
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    I prefer the common law system and the appellate courts.

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    Reigning Bologna Princess Rajah's Avatar
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    I know I'm getting a lot nitpicky here, but you're not exactly accurate when you're discussing judicial precedent or the tradition of stare decisis in the common law. Judges are bound to adhere to prior decisions in certain circumstances, but they are free to ignore even directly on-point decisions in others. It depends on who issued the prior decisions. In the literature, you'll see this referred to as "binding precedent" and "non-binding precedent." Binding precedent refers to one of two things. First, it can refer to "vertical precedent," which means that lower courts must adhere to the decisions made by superior courts in the same judicial system. So that's why a lower court has to follow the Supreme Court's decisions - no matter how much that court may disagree.

    Binding precedent can also refer to "strong stare decisis," which means a court has to adhere to decisions made by a prior panel of the same court in the federal appellate system.

    Now, courts can accept any other on-point decisions as persuasive, but they don't have to.

    In all this, the Supreme Court is viewed as the utmost authority on the law. To make its decisions, the Supreme Court relies on precedent as well as "references to the academic study of law," so the distinction between common law and civil law isn't drawn along these lines as you suggest.

    The other thing is that the common law also strives to be a "rational" system. That's what stare decisis aims for - to create a systematized application of rules, so people can know what behavior is acceptable or not and what the consequences for violating legal norms are. The difference is that we give the states the right to govern themselves so that their decisions reflect local norms; that's why you get different laws in different states. Otherwise you'd violate principles of federalism.

    Stare decisis, incidentally, isn't concerned with right or wrong. It is concerned with creating a system. If justice is sacrificed in one case, it's considered acceptable as long as the system as a whole is preserved.


    I... suppose. Yeah!

  7. #7
    Dreaming the life onemoretime's Avatar
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    Quote Originally Posted by Rajah View Post
    I know I'm getting a lot nitpicky here, but you're not exactly accurate when you're discussing judicial precedent or the tradition of stare decisis in the common law. Judges are bound to adhere to prior decisions in certain circumstances, but they are free to ignore even directly on-point decisions in others. It depends on who issued the prior decisions. In the literature, you'll see this referred to as "binding precedent" and "non-binding precedent." Binding precedent refers to one of two things. First, it can refer to "vertical precedent," which means that lower courts must adhere to the decisions made by superior courts in the same judicial system. So that's why a lower court has to follow the Supreme Court's decisions - no matter how much that court may disagree.

    Binding precedent can also refer to "strong stare decisis," which means a court has to adhere to decisions made by a prior panel of the same court in the federal appellate system.

    Now, courts can accept any other on-point decisions as persuasive, but they don't have to.

    In all this, the Supreme Court is viewed as the utmost authority on the law. To make its decisions, the Supreme Court relies on precedent as well as "references to the academic study of law," so the distinction between common law and civil law isn't drawn along these lines as you suggest.

    The other thing is that the common law also strives to be a "rational" system. That's what stare decisis aims for - to create a systematized application of rules, so people can know what behavior is acceptable or not and what the consequences for violating legal norms are. The difference is that we give the states the right to govern themselves so that their decisions reflect local norms; that's why you get different laws in different states. Otherwise you'd violate principles of federalism.

    Stare decisis, incidentally, isn't concerned with right or wrong. It is concerned with creating a system. If justice is sacrificed in one case, it's considered acceptable as long as the system as a whole is preserved.
    Max Weber, William Blackstone, and Oliver Wendell Holmes disagree.

  8. #8
    Reigning Bologna Princess Rajah's Avatar
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    Quote Originally Posted by onemoretime View Post
    Max Weber, William Blackstone, and Oliver Wendell Holmes disagree.
    With which of the paragraphs? The long-standing principles of stare decisis?

    And this is a rather unamazing proposition, but legal scholars disagree. What I said, though, is pretty first-year law school stuff.


    I... suppose. Yeah!

  9. #9
    Doesn't Read Your Posts Haight's Avatar
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    Quote Originally Posted by onemoretime View Post
    Max Weber, William Blackstone, and Oliver Wendell Holmes disagree.
    I think citing a Jew, a Jewish sympathizer, and another Jew is diminishing the credibility of you argument.
    "The only time I'm wrong is when I'm questioning myself."
    Haight

  10. #10
    Dreaming the life onemoretime's Avatar
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    Quote Originally Posted by Rajah View Post
    With which of the paragraphs? The long-standing principles of stare decisis?

    And this is a rather unamazing proposition, but legal scholars disagree. What I said, though, is pretty first-year law school stuff.
    You're right, it absolutely is first-year stuff. Which is why it's completely wrong.

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