The majority of legal authors divide the legal systems of the world into two mains groups : the common law on one hand, and the civil law on the other hand . The most interesting is that when you try to find definitions for those words, you often find the basic definition, and then, as a conclusion, you are told to distinguish the two systems. For instance, we can look at the definitions given by the Britannica Encyclopedia for those two notions. Civil law is defined as « a body of law developed from Roman law and used in continental Europe and former colonies of European nations, including the province of Quebec and the US state of Louisiana. The basis of law in civil-law jurisdictions is statute, not custom; civil law is thus to be distinguished from common law » . Then, common law is defined as « a body of law based on custom and general principles and that, embodied in case law, serves as precedent or is applied to situations not covered by statute. Common law has been administered in the courts of England since the Middle Ages; it is also found in the US and in most of the British Commonwealth. It is distinguished from civil law » . Since these two systems are both used in the European Union, it might be interesting to look at their differences concretely. So, here we will focus on the main differences between civil and common law, as defined above. We will concentrate our discussion on the civil and common law as used in the European continent. Rather than focusing on each differences, which will lead us to a descriptive listing, we will adopt an evolutive approach. Thus, we will look at the historical background of each system, and how it has influence their actuals characteristics. Then, we will focus on the main difference between civil and common law, that is to say the legal thinking, not withstanding the fact that they always have the same purpose : to regulate and harmonize the human activity.
[...] Indeed, it seems like common law judge are more passive than civil law ones. This is due again to history. In common law system, the leading role comes to the parties and their lawyers. In civil law countries, procedure is inquisitorial. That is to say the judge is given a strong role. He can adopt the role as an examiner, he asks questions, informs and advices parties and so on. The manner of writing opinions and decisions is a characteristical element of each system. For instance, French decisions are much shorter. [...]
[...] What are the main differences between the civil and the common law systems ? Plan INTRODUCTION FROM A DIFFERENT HISTORICAL BACKGROUND TO A DIFFERENT LEGAL THINKING II/ FROM A DIFFERENT LEGAL THINKING TO THE SAME GOAL CONCLUSION Introduction The majority of legal authors divide the legal systems in the world into two mains groups : the common law on the one hand and the civil law on the other hand[1]. The most interesting is that when you try to find definitions for those words, you often find the basic definition and then as a conclusion you are told to distinguish the two systems. [...]
[...] Dainow, The Civil Law and the Common Law : some points of comparison, The American journal of comparative law Vol.15 K. Zweigert, An introduction to comparative law, p.69 (1998) Ibid, p.259 Ibid, p.264 J. Dainow, The Civil Law and the Common Law : some points of comparison, The American journal of comparative law Vol.15 Id. R. David, Major legal systems in the world today, An introduction to the comparative study of law, p.336 (1985) J. Dainow, The Civil Law and the Common Law : some points of comparison, The American journal of comparative law Vol.15 Id. [...]
[...] Very briefly we can also notice that doctrine is an inherent part of the civil law system. It is not an official source of law but it exercises a great influence in the development of law. That is not the case in common law countries where doctrine is more about classify and distinguish the rules decided in cases[15]. But then again the distinction is not totally strict. We could use here many other examples to illustrate how in practice the legal thinking of the two systems are distinct. [...]
[...] Dainow, The Civil Law and the Common Law : some points of comparison, The American journal of comparative law Vol.15 M. Shapiro, Success of Judicial Review” in Constitutional Dialogues in Comparative perspective (1999) J. Dainow, The Civil Law and the Common Law : some points of comparison, The American journal of comparative law Vol.15 R.David, “Existe-t-il un droit occidental?” in Melanges Hessel E. Yntema (Twentieth century comparative and conflicts law), (1961) R. David, Major legal systems in the world today, An introduction to the comparative study of law, p.25 (1985) M. [...]
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