The dominate legal system today is civil law. Civil law started from ancient Roman Law and is the oldest and most influential system stretching to most of the world. The origins date back to 450 B.C. with the 12 tables of code laws. Emperor Justinian preserved codification of Roman Law under Corpus Juris Civilis After Germanic Tribes took over most of western Europe, Germanic Tribal Laws recognized some importance in Roman Law, allowing those subjects of the fallen Roman Empire to follow Roman Law. The Roman Catholic Church played an important role in this history to preserve this ancient law.
Centuries later (about 11th and 12th century), glossators, commentators began analyzing Corpus Juris Civilis and write notes and explanations to the meaning of the code. Law students began traveling to study law and wanted to create a new law profession. Law Universities in Oxford, Paris, Prague, and other locations were set up with a common goal to create a new Civil Law. This new law was to include Roman Law, and Canon Law, along with the writings from these glossators and commentators and became the common law of Europe (Jus Commune).
Around the 15th century, rules and procedures to protect merchants became legal practices called lex mercatoria (Latin for Law Merchant). Lex mercatoria was popular, especially in England, where there was resistance to Roman Law. Lex mercatoria has been incorporated into modern commercial law code. However, the two codes that had an influence over the formation of Civil Law were the French Civil Code (also referred to as the Napoleonic Code) and the German Civil Code. The French Civil code defined French Law and had certain rights written into the law such as right to own private property and freedoms to contract. German scholars took the Corpus Juris Civilis text, researched and analyzed the underlying principles to form a more structured and technical version to use in Germany.
Since World War II, Civil Law has seen more changes such as adding legislative and judicial interpretations and revisions to the German Code. Since the creation of the European Union, more member states have moved toward balancing the laws.
Basic Principles of Civil Law
Judges look to statutory rules to make decisions on cases. The judges will look to earlier court decisions and even cite them, but they are not bound to follow them. The judges do not give opinions that make new laws a binding precedent like a common law judge. Civil law lawyers are good at interpreting code laws and judges are educated to become judges, not lawyers first. When presiding over criminal case, both the judge and lawyers perform a more investigative search for the truth without opposition from the other side. Civil law judges will work as both judge and jury in contract and tort cases and investigate the facts, along with deciding which witnesses to call and the type of questions asked to the witnesses.
Common Law origins originate in England through a series of conquests from the Normans and William the Conqueror to establish a new kingdom. The term common law comes from the theory that the King’s courts were the representatives of the common custom of the realm instead of local customary laws. Court rulings were the precedent to laws with doctrine called the supremacy of the law. Common law principles came from Henry II by way of three courts. Each court made decisions on matters pertaining to tax disputes (Court of Excheguer), land disputes, payment of debts (Court of Common Pleas), and cases of royal interest (Court of King’s Bench). Because of limitations to common law, in 1285 the Statute of Westminster stopped creation of new writs and would only hear cases that fit within certain parameters. With this narrowing of procedures caused the hearing of cases to be more complex. The creation of the courts of equity was brought to eliminate the limits of the laws with added powers to order injunctions, restitution, or specific performance. The Judicature Acts of 1873 and 1875 was the result of Field Code (merging of law and equity into one jurisdiction) and required that lawsuits be tried in single class courts, using a single procedure. The Field Code was adopted by American Government, England, and other British colonies. The spread of common law was quite different from civil law. Common law spread through direct ties or connection to England, where it originated.
Basic Principles of Common Law
The characteristics of common law are the fact they are based on judicial decisions. Cases are decided based on precedents established by previous case decisions. Judges can refer to related case decisions to draw conclusions for a particular case. Common law also has trial by jury, where the jury is the final decision and also supports the doctrine of supremacy. The precedents on legal matters are bound to the previous decisions of the highest court. Statutes, although separate from common law, are enacted through legislators and often are used for interpretation in the courts.
Basic laws relating to contracts, torts, and property fall under common law not statute but sometimes certain cases bring actions outside of common law. An example is a tort for wrongful death where a suit can be brought by a person against another to sue for damages on behalf of the deceased (e.g. medical malpractice where someone dies because of negligence from the doctor). English common law does not have this tort, where the statute for wrongful death can remedy the situation, provided the statute exists in that country or state. One of the cultural differences differentiating common law from the other types is that scholarly work is very seldom given any weight within the courts. If a court relies on any type of scholarly work, it is only for factual discoveries or policy justification, but legal conclusions are analyzed with statutes and common law. Common Law Lawyers research case law to use precedent and develop legal arguments in their client’s behalf. They take legal principles from unrelated cases to try to justify if they apply to the case they are defending (or prosecuting).
Common Law judges also serve as arbiter between opposing counsel and rule on evidence or testimony that is admissible in court. They serve to maintain a fair trial. It is interesting that fairness of trials often is contrasted with jury trials involved in private damage lawsuits that often award high verdicts and punitive damages.
The Islamic Law system (also known as Shari’a) has its basis on principles and writings from the Koran and other related writings. The order of importance for Shari’a origins are the Koran, the Sunna (or traditional teachings and writings of the Prophet Muhammad), writings from Islamic scholars who analyzed both the Sunna and the Koran, then wrote rules based on those writings, and consensus from the legal community. In the 10th century A.D. the legal community froze the evolutionary process of Islamic Law. This means that the Islamic Legal systems has not extended, added, or changed any of the laws and are not allowed to make any changes. All decisions on matters of law are from these ancient writings, which put them at odds with the rest of the world’s legal systems.
Basic Principles of Islamic Law
The characteristics of Islamic law root in Divine Law and fundamentalist principles. They are not bound by any precedent of the courts and seek truth through the word of God (or Allah as Muslins call Him). Shari’a means path or path to water and is the route a Muslim takes to seek salvation. Shari’a principles are both sacred and secular. This means that religious affairs take precedent and involve in decisions relating to anything – criminal, ethical, even business dealings. Personal property, marital status, and rights to women vary, depending on the Muslim country. Some are more modern, trying to blend Shari’a with civil or common law, whereas others abide strictly to Islamic principles. An example of such a principle is in Saudi Arabia, where an unmarried woman is the ward of her father, and a widow is the ward of her son. Although Saudi Arabia has assembled regulations for businesses in product labeling, insurance, corporate tax, and foreign investments, these are never in contradiction of Islamic Law but only to support it.
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Bain, M. (2007). Faith Facts: What is Shari’a Law? On Faith, Washington Post and Newsweek. Retrieved from http://newsweek.washingtonpost.com/onfaith/faithfacts/2007/04/what_is_sharia_law.html
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The Columbia Encyclopedia, Sixth Edition Copyright© 2004, Columbia University Press. Licensed from Lernout & Hauspie Speech Products N.V. All rights reserved.
Schaffer, R., Agusti, F., & Earle, B. (2009). International business law and its environment (7th ed.). Mason, OH: Cengage.