Common Law vs. Civil Law

Many nations today practice either a common law or civil law system of justice. While common law originates in Medieval England, civil law traces its origins back to the Roman Empire (and, subsequently, Continental Europe). Although both systems originate in Europe, they have been exported to many other countries, either through colonization or other means. Because common law and civil law are fundamental concepts for justice systems around the world, they are essential to understand for anyone who wants to learn more about legal tradition, either at home or abroad.

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What is the Common Law?

Common law comes from Medieval England, specifically in the aftermath of the Norman Conquest of 1066. Because common law is the foundation of the English legal system, it has been exported to many countries that have had historical ties with England, such as the United States and much of the Commonwealth. The distinguishing characteristic of common law is that it is based more on precedent than on a codified set of laws and regulations. Judges hold immense power in a common law system, since the decisions that a court makes are then used as a precedent for future court cases. While common law systems do have laws that are created by legislators, it is up to judges to interpret those laws and apply them to individual cases. To do this, judges rely on the precedents set by previous courts. In common law countries, certain courts, such as the Supreme Court of the United States, have the ability to strike down laws that were passed by legislators if those laws violated the Law of the Land (i.e., the Constitution).

What is civil law? 

Civil law goes all the way back to Roman times when Emperor Justinian codified all of the Empire’s laws in the sixth century CE. Civil law was subsequently revived in much of Medieval Europe and serves as the foundation for the legal systems of countries like France, Spain, and Portugal, along with many of their former colonies, including the province of Quebec and the state of Louisiana (which both exist in countries that are otherwise dominated by common law tradition). Civil law has also been used by non-European countries that were never colonized, such as Russia and Japan, as the basis of their own legal reforms. Common law places much less of an emphasis on precedent than it does on the actual codification of the law. Civil law systems rely on a large legal code that is constantly updated and which establishes legal procedures, punishments, and what can and cannot be brought before a court. In a civil law system, a judge merely establishes the facts of a case and then judges that case based on the procedures laid down by the legal code. As a result, precedent and judicial decisions have limited influence in a civil law system. Rather, lawmakers, scholars, and legal experts who help craft the legal code hold much more sway over how the legal system is ultimately administered.

Common law and civil law, while both originating in Europe, have become truly global legal traditions. Despite going back hundreds and even thousands of years, both systems have continued to effectively shape the justice systems of hundreds of countries well into the 21st century.

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Natural Rights

Natural rights and legal rights are the two basic types of rights.

  • Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and so are universal, fundamental and inalienable (they cannot be repealed by human laws, though one can forfeit their enjoyment through one's actions, such as by violating someone else's rights). Natural law is the law of natural rights.

  • Legal rights are those bestowed onto a person by a given legal system (they can be modified, repealed, and restrained by human laws). The concept of positive law is related to the concept of legal rights.

Habeas corpus

 

(/ˈheɪbiəs ˈkɔːrpəs/  Medieval Latin meaning [we, a Court, command] that you have the body [of the detainee brought before us]") is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful.

The writ of habeas corpus is known as the "great and efficacious writ in all manner of illegal confinement". It is a summons with the force of a court order; it is addressed to the custodian (a prison official, for example) and demands that a prisoner be brought before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond their authority, then the prisoner must be released. Any prisoner, or another person acting on their behalf, may petition the court, or a judge, for a writ of habeas corpus. One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held incommunicado.

Representative Government

The entire universe is organized and administered on the representative plan. Representative government is the divine ideal of self-government among nonperfect beings.


Representative democracy, also known as indirect democracy or representative government, is a type of democracy founded on the principle of elected officials representing a group of people.
 

Common Law

 

Common law (Latin: ius naturale, lex naturalis) is a system of law that purports to be based on values intrinsic to human nature that can be deduced and applied independent of positive law (the enacted laws of a state or society). According to natural law theory, all people have inherent rights, conferred not by act of legislation but by "God, nature, or reason."

Due Process

Due process is the legal requirement that the state must respect all legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law.Due process developed from clause 39 of Magna Carta in England. In clause 39 of Magna Carta, issued in 1215, John of England promised: "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land." Magna Carta itself immediately became part of the "law of the land", and Clause 61 of that charter authorized an elected body of 25 barons to determine by majority vote what redress the King must provide when the King offends "in any respect against any man". Thus, Magna Carta established the rule of law in England by not only requiring the monarchy to obey the law of the land but also limiting how the monarchy could change the law of the land.