IFP0650 Civil and Common Law Legal Systems PDF

# IFP0650: Civil and Common Law Legal Systems ## Introduction to Legal Systems - A legal system is an operating set of legal institutions, procedures, and rules that exists in a country. - National legal systems are broadly classified into civil and common law. - England and Wales, New Zealand, an...

# IFP0650: Civil and Common Law Legal Systems ## Introduction to Legal Systems - A legal system is an operating set of legal institutions, procedures, and rules that exists in a country. - National legal systems are broadly classified into civil and common law. - England and Wales, New Zealand, and the United States are known as 'common law'. - Germany, France, Italy, and the UAE fall under 'civil law'. ## Other legal systems - **Religious legal systems:** For example, Islamic (Sharia) Law, the law would be used for matters of crime, marriage, inheritance, and governance. Example: Afghanistan. - **Mixed (Hybrid) legal systems:** Can be a hybrid of civil and common law systems or a combination of civil law, common law, religious law, and/or customary law. Example: The United Arab Emirates applies Islamic law in personal but not civil or criminal matters. ## World Map of Legal Systems A world map is shown depicting different legal systems with key: - **CIVIL LAW** - largely in South America, Central America, most of Europe, Africa - **COMMON LAW** - North America, Australia, West Indies, some of Asia, South East Asia - **MUSLIM LAW** - Middle East - **CUSTOMARY LAW** - Primarily in Africa - **MIXED SYSTEM** - Primarily in Asia ## Civil Law System **Origin:** Civil law jurisdictions are based on Roman law and The Code Napoleon, which is a comprehensive civil code that was developed in the 19th century. **Codification:** Places an emphasis on legal codes/codified statutory systems crafted by the legislature to resolve legal disputes; only legislative enactments are considered binding for all. **Role of judges:** Judges in civil law jurisdictions primarily interpret and apply the law, rather than creating new laws through legal precedent. An investigating judge is actively involved in investigating the facts of a case. **Certainty And Equity:** A fundamental goal in civil law systems is that legislation should be clear, complete, and coherent and limit the discretion of judges. Judges may from time to time be granted authority to use equity in the disposition of a case but that grant of power will be expressly made and carefully circumscribed in a statute enacted by the legislature. ## Overview of Common Law Legal System - There is not always a written constitution or codified laws. - Judicial decisions are binding - decisions of the highest court can generally only be overturned by that same court or through legislation. - Common law is rooted in centuries of English history. It emphasizes the centrality of the judge in the gradual development of law and the idea that law is found in the restatement of legal doctrine through the decision of the courts. ## Features of Common Law - Uncodified - Judge-made Law - Precedent - Adversarial ## Features of Common Law: Uncodified - Absence of a legal code. - Code is a collection of laws to deal with main areas of law (Civil law). - Common in other European countries. ## Features of Common Law: Judge-made Law - Judges make and change the law. - Development of common law. - Statute takes precedent over common law. ## Features of Common Law: Precedent - Courts are bound to follow the law laid down in earlier cases, particularly if the case has similar facts. - Decisions made in the higher courts become precedents that must be followed by courts in all future cases. - This aims to ensure that similar cases are treated similarly, which many people regard as one of the most important aspects of justice. ## Features of Common Law: Adversarial - Civil and criminal courts: cases are presented to a judge. - The Judge is neutral. - The judge decides on the evidence presented before them. - The **Inquisitorial Procedure** is used in civil law jurisdictions. - The judge can cross-examine the defendant and witnesses.