Comparative Private Law Overview

Comparative Private Law

• Legal mentality of jurists is a combination of factors, history, and culture.
• Historical process and legal culture shape each rule.
• Cultural understanding is critical to understanding other legal systems.
• Rules come from a deeper source than their immediate application.
• Western legal tradition originated in Europe with common law and civil law subtraditions.
• Shared history, economics, values, and basic rules exist, but are applied differently.
• Legal modules circulate throughout legal systems.
• History dictates legal value comparisons, economic developments, and legal system formations.
• Legal systems were consolidated between the 11th and 13th centuries. Consolidation continued from the 14th-18th centuries with a transitional period between the middle ages and modern Europe, starting with the French Revolution.
• Common law is based on royal and crown courts, writs, and royal courts.
• Civil law is based on Justinian's Corpus Juris and Roman law study and teaching.
• Civil law subjects are canon law scholars and professors.
• Irnerius was a 9th-century professor who translated the Corpus Juris Civilis and taught legal systems.
• Roman law spread throughout Italian legal systems; forming common law for continental Europe alongside local laws and customs.
• Known as ius commune and had influence on other legal systems.
• Roman law affected civil law alongside Italian scholars.
• Modern nation-states emerged in the 18th century and each created their own laws.
• Each state of continental Europe created a civil code, starting with France with the Code Napoléon (1804).
• Code Napoléon was inspired by Roman law.
• This impacted modern civil codes.
• Code Napoléon addressed average citizens of France. This was different than previous ius commune and Roman law.
• The common law, in England, was shaped by William the Conqueror, who initiated a Norman English kingdom.
• English Lawyers, judges, and legal procedures were separated from the political establishment.
• Inns of Court were professional associations created in the 14th century for training lawyers and legal professionals.
• Common law procedures were taught in the royal courts until the 19th century..
• Common law is based on case precedents and English courts follow previous cases.
• In civil law, statutes are the basis of law, made by the legislators.
• Religious law alongside common and civil law included customary law, mixed law, socialist law and religious law in civil and common law.
• Islamic law is a part of religious laws with a legal system based on religious norms.
• Sharia, Halakha, and Canon law are examples of religious laws.
• In Islam, the religious legislator is God, so religious law is not changeable.
• Jurisprudence in Islamic law is based on precedent, reasoning by analogy, and interpretation.
• Islamic Law is based in the Quran and Sunna and is generated from these through regulations and interpretation.
• Islamic law differs from other religious based systems based on a similar premise—that the legislator is God.
• Islamic legal system based on legal precedent, reasoning by analogy (qiyas), legal interpretation, and the interpretation of the works of God for legal guidance.
• Common law vs civil law regarding the classification of acts includes a division of lawful and unlawful acts, that has similarities with the Islamic legal code.
• Classification of acts are categorized by compulsory, recommended, lawful, reprehensible, and prohibited actions, and are often tied to the reward or punishment in a person's afterlife.
• World's legal systems (Civil and common law) are categorized by the Eastern legal tradition, Islamic law and religious based legal systems, and mixed legal systems.
• Civil law is comprised of Irnerius, the first European civil law scholar, and the determining basis of private and civil law in the historic context of Roman law.
• Roman law interpreted by Italian jurists created a common law in continental Europe that followed the application of local laws and local customs.
• During the 19th-20th centuries, civil law emerged during modern times, based on legal transplantation and growing circulation of legal models .
• Common law was spread by British colonization, emigration, and political conquest.
• Common law spread by imposition and imitation because of the prestige it held among legal traditions.
• Common law systems are based on precedents established in courts' case decisions, and the doctrine of stare decisis.
• In the common law system, judges are bound to apply the doctrine of stare decisis, following established precedents in previous cases when making decisions in current cases.
• Different circumstances make legal decisions different (e.g. colonial history, political conquest, prestige and imitation).
• Legal systems vary and have influenced each other through different cultures, creating legal transplantation and circulation.

Acts Classification

• Laws are often divided into lawful and unlawful acts for common and civil legal systems and can overlap with Islamic legal systems classifications with similar divisions.
• Religious based legal systems have specific classifications of actions in relation to religious or divine laws.