Civil Law vs Common Law

Civil Law vs Common Law

Civil Law vs Common Law
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Civil Law vs Common Law

Common law jurisdictions differ greatly from civil law jurisdictions. Common law places a large amount of importance on precedent. Court cases are ruled by applying past judgments to subsequent cases with similar circumstances. In these systems, judges are able to essentially create law when ruling in cases of first impression.

Cases of first impression occur when the circumstances of a case are unique and there is no existing precedent that can be applied to this case. When a judge rules on a case of first impression in a common law system, this ruling will become law and set a new precedent.

In civil law systems, cases are ruled based on written civil legislation and code. This means that judges have more freedom in interpreting legislation than in common law systems, since their decisions are not based on precedents. It is sometimes said that civil law systems are less predictable than common law systems. This is because civil law is not based on precedence, thus giving parties involved in lawsuits less of an ability to predict the outcome of their case.

Another major difference between civil law and common law jurisdictions is the use of the adversarial or the inquisitorial systems. Common law will utilize an adversarial system. This means that there will be two sides of an argument that are represented by adversaries. These adversaries will represent the interests of their clients and attempt to influence an impartial judge and jury.

In an inquisitorial system that is utilized in civil law jurisdictions, the judge is actually involved in examining evidence that will lead to a decision. This is different than an adversarial system in which the evidence is only presented to the judge. A judge in a civil law system may be able to actually interrogate witnesses and examine evidence. This means a judge is not an impartial party, but may be biased based on evidence.

The way that legal academia is treated by the legal system differs greatly between civil law and common law jurisdictions. Under the common law, legal professionals' treatises and academic findings are often treated as support for a court's decision. It is not generally treated as the law itself. Academic writings may also be used as support for creating new policy and in legal opinion. Legal opinion always accompanies a judge's decision and it is basically an explanation of a ruling. It will reference prior court cases and legal treatises. In civil law jurisdictions, legal writings are much more significant in judge's rulings. These are often relied upon in civil law to form judicial opinion.

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