W101: Unit 1 – common law and civil law systems

In my previous Unit 1 post, I explained basic International Law. Now I will continue explaining how law can also be classified by national (also known as domestic) law systems. National law is the law of a single nation/country. Keep in mind that Unit 1 is the very beginning of W101, which itself is An Introduction to Law! Explanations at this level are very, very basic. I am following the OU format as I learn.

Common Law:-

Many countries follow the ‘common law’ system, that is, laws that follow a system of precedent set by judges who preside over cases. It is also known as ‘judge-made law’. When a judge hears a case, he has to decide two things:

• What are the facts of the case,
• How the law applies or fits with those facts.

When the judge makes a decision concerning those facts, a system is set up where any other subsequent case occurring, that has similar facts, the law (and interpretation) that the judge applied will be followed in like manner.

The rule also has structure. Higher courts, such as the Court of Appeal and the Supreme Court (domestically) and the European courts (ECtHR and ECtJ) can overrule the lower courts. This will be explained further when I come to the court system. At this time, it is enough to remember that higher courts have the power to overturn lower courts.

Common law systems are found in countries which follow the British legal system, such as the Commonwealth countries (USA, Canada, India etc.).

There are two ‘types’ of civil law, as explained below.

Civil Law 1:-

The ‘first’ type of civil law is a system of law used by countries which have a system of law originating from Roman law in Europe. This Roman root was later influenced by Germanic traditions.

Essentially, this civil law comprises of a series of abstract principles which form an authoritative statement on the law, and is comprised of a collection of legal codes on different issues. The role of the judge is to interpret and apply these codes to the situation. Many countries in Europe, Latin America, china and some African states use this system.

Civil Law 2:-

In this type of civil law, we care concerned about the lawful interactions between legal persons (more on this later). Suffice to say at this point, a legal person could be an individual, or a company.

When relationships break down because there is some type of breach, this type of civil law comes into place and the parties can make a claim for some form of relief at the court. Examples of the type of breakdown include:

• contracts,
• tort (where a duty has been breached such as failure to meet a standard of care),
• succession (the distribution of assets after death, involving inheritance, wills etc.),
• Family law (divorce, marriage, maintenance etc.).

Note that although the courts arbitrate, it is the decision of the individual to enter into these legal relationships, such as contracts. Therefore, the state itself is not party to the proceedings, and it is up to the aggrieved party to take action for redress. This is why it is considered ‘civil’ law and not ‘criminal’ law.

The aggrieved person makes a ‘claim’ or ‘sues’ the person s/he believes is ‘liable’. The party claiming is therefore known as the ‘claimant’ and the person defending is the ‘defendant’. The case is known by the names of the parties e.g. Smith v Jones which is read as Smith and Jones.

Next: Classification of law by source.