English Common Law & Roman Law

[Equinox]

Hello,

Here is a map illustrating the spheres of influence of both the English Common Law and the so-called Roman Law (Civil Law).

http://upload.wikimedia.org/wikipedia/commons/2/21/LegalSystemsOfTheWorldMap.png

Would you please debate the merits of both systems. It would be interesting to hear from anyone who lives or has lived in Lousiana, Quebec or Scotland especially.

Also, I have included a poll in which you may vote for your preferred legal system.

[Aemma]

Hmm that bit on Quebec is wrong actually. Quebec's code is a civil code only purely based on French Civil Law. There is no droit commun (common law) practised there.

[Equinox]

Hmm that bit on Quebec is wrong actually. Quebec's code is a civil code only purely based on French Civil Law. There is no droit commun (common law) practised there.

If there was a Common Law case in another region of Canada with a judgment at a Federal level, would that also be binding on Quebec, or is it exempt from such judgments?

[Aemma]

If there was a Common Law case in another region of Canada with a judgment at a Federal level, would that also be binding on Quebec, or is it exempt from such judgments?

Haha you got me! That is probably the reason for it claiming to do both. Federally yes Canada practises Common Law and all of her provinces and territories save for Quebec practise Common Law as well.

A judgment elsewhere would be binding on Quebec if and only if such a judgment did not fall under provincial jurisdiction.

Good job Equinox! :thumb001:

[Óttar]

If there was a Common Law case in another region of Canada with a judgment at a Federal level, would that also be binding on Quebec, or is it exempt from such judgments?
We have the same situation with Louisiana which contains elements of the Code Napoleon.

[SwordoftheVistula]

We have the same situation with Louisiana which contains elements of the Code Napoleon.

Yes, the way it works apparently is every year the legislature passes a law placing into the code the previous year's court decisions, something along those lines

[Murphy]

Scotland:


Scots law is a unique legal system with an ancient basis in Roman law.[1] Grounded in uncodified civil law dating back to the Corpus Juris Civilis, it also features elements of common law with medieval sources. Thus comparative law classifies Scots law as a mixed legal system, a group that also contains South African law and the legal systems of Louisiana and Quebec.[2]

Since the Acts of Union, in 1707, it has shared a legislature with the rest of the United Kingdom. Scotland retained a fundamentally different legal system from that of England and Wales, but the Union brought English influence on Scots law. In recent years, Scots law has also been affected by European law under the Treaty of Rome, the requirements of the European Convention on Human Rights (entered into by members of the Council of Europe) and the establishment of the Scottish Parliament which may pass legislation within its areas of legislative competence as detailed by the Scotland Act 1998.[3]

There are substantial differences between Scots Law, English law and Northern Ireland law in areas such as property law, criminal law, trusts law, inheritance law, evidence law and family law while there are greater similarities in areas of national interest such as commercial law and taxation law. Some of the more important practical differences between the jurisdictions include the age of legal capacity (16 years old in Scotland, 18 years old in England)[4][5], the use of a 15 member jury in Scotland rather than the usual 12 members,[6] the fact that the accused in a criminal trial does not have the right to elect a judge or jury trial,[6] judges and juries of criminal trials have the "third verdict" of "not proven" available to them,[7] and the fact that Equity does not exist in Scots law. Some of the more important practical similarities between the jurisdictions include the similar protections for consumers under the Sale of Goods Act 1979[8], very similar treatment under various taxation legislation and similar protections for employees and agents.[9]

http://en.wikipedia.org/wiki/Scots_law

[Óttar]

Apparently the Code Napoleon created a simple, unified code for Europe during the Napoleonic conquest of continental western Europe. Does anyone know more about the Code Napoleon specifically?

I'm sure any legal system gets more convoluted as time goes on.

"The more corrupt a society, the more numerous the laws." - Tacitus

[Octothorpe]

I'll take the common law: the English Common Law (and the American derivitive) embody the concept of nullification by jury, where the most average of citizens may overturn the decisions of the high and mighty. It is true that such decisions have dropped dramatically since the Civil Rights era, but with the 10th Amendment movement afoot, jury nullification might make a comeback. And if you haven't visited before, you might want to check out the webpage http://fija.org/. The Fully Informed Jury Association does good work in educating citizens about their full rights as jurors.

[Óttar]

First I'd have to know more about the two systems. Care to enlighten us as to the differences?

[SwordoftheVistula]

First I'd have to know more about the two systems. Care to enlighten us as to the differences?

Definitionally, mainly that in the common law system the law is based on judicial precedent, and in civil law it is based on statutory code. This line has become blurred a lot over the past 150 years or so, as most civil law countries now rely on prior judicial decisions, and common law countries have large statutory codes.

Also, in addition to juries, in common law systems the judges are required to be objective, and basically act as referees between the two sides. In civil law countries, they are not, and for example often take on roles which are assumed by prosecutors in common law countries.

[Equinox]

Definitionally, mainly that in the common law system the law is based on judicial precedent, and in civil law it is based on statutory code. This line has become blurred a lot over the past 150 years or so, as most civil law countries now rely on prior judicial decisions, and common law countries have large statutory codes.

Also, in addition to juries, in common law systems the judges are required to be objective, and basically act as referees between the two sides. In civil law countries, they are not, and for example often take on roles which are assumed by prosecutors in common law countries.

What are your views on the politicization (or is it rather a perversion?) of the common law practiced in the USA?

To the best of my knowledge no other common law countries have such a great political influence on their respective judges - the separation of powers being truly that, a separation.

[SwordoftheVistula]

What are your views on the politicization (or is it rather a perversion?) of the common law practiced in the USA?

To the best of my knowledge no other common law countries have such a great political influence on their respective judges - the separation of powers being truly that, a separation.

Yes, we do have a problem with judges who declare such things as racially segregated schools, the death penalty, and restricting marriage to between a man and a woman as 'unconstitutional' and thereby enact social policy by judicial fiat. Mainly the problem arises from a far left takeover of the academic world including law schools (the Frankfurt School, if you are familiar with that). The judges are actually more politicized here (assuming that is so) because there is more separation of powers as opposed to other countries, not less, the judicial branch here effectively has the power to invalidate any action by the other 2 branches and there's not much the other 2 branches can do to reign in the judicial branch. The only thing they can do is amend the Constitution, which isn't that hard to do in some states such as California (the people of the state passed a ballot initiative to amend the state constitution after the California supreme court mandated gay marriages), but with the federal laws it is nearly impossible to pass an amendment to the federal constitution, so you get stuck with whatever the court says. The problem isn't as bad as it used to be, most of the judges appointed in the 1932-1968 period were very politicized ('activist' as we call them) but since then they have generally gotten better, more objective and less politicized/activist.

I'm not really sure what your question is actually, but hopefully that brief summary of the problems with the American judicial system in relation to politicization and independence helps. AFAIK the US is the only common law country with a written Constitution, which explains why the judicial branch has more power here than in other countries.

[Óttar]

American Law is complicated by the US Constitution which is at least supposed to be the highest authority.