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Similarities between the civil law system and the common law system
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Question 1
a. What is the meaning of the term ‘common law’ and what are the characteristics of a ‘common law’ system?
(Oxford Dictionaries, n.d. a) defines common law as, ‘the part of English Law that is derived from custom and judicial precedent rather than statutes’. This means that this particular type of law, has developed from traditions and perspectives of the law court, rather than from law passed by Parliament.
The main feature of common law is that it is case law centred, and interpreted by a judge; unlike the civil law system, which is based on statutes and legislation. In common law, a judge is presented with a case and will proceed to examine the facts and how the law applies to them, from investigation of relevant statutes and cases. Once the judge has applied the law to the facts, this sets an example which is dictated by the higher court and binds the lower court, ensuring that the courts apply the same principles when presented with a similar case. Stare decisis, is the Latin phrase which is the standard adopted in determining points in common law proceedings according to precedent and simply translates to ‘stand by things decided’. Case law is very well documented and previous precedents are readily available.
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In this article written by David Bartholomae, the author discusses problems basic writers make and about how they must use the discourse (communication style) of the academic community they are writing to, to be an effective writer. Bartholomae believes that “Inventing the University," is being able to assemble and mimic the universities language(5). Which means, if a student wants to be an efficient writer, he or she must be able to speak the language of his or her audience. Bartholomae writes that a common mistake of basic writers is that they don’t use an authoritative voice, and tend to switch into a more passive voice. This could be due to the fact that students have difficulty establishing their mindset or attitude for an audience
Legislation and the Common law are not separate and independent sources of law. They exist in a symbiotic relationship. Symbiotic relationship refers to the two different sources of legal norms that provide the sum of rules establish system as a whole. (Brodie v Singleton Shire Council (2001) 206 CLR 512, 532 [31])
Common Law vs. Political Law vs. Scientific Law Americans are no longer aware that there are two kinds of legal systems, political and scientific. America was founded on principles of scientific law. But these principles have now been submerged in today's legal system. What is taught today as law is political law. To understand the difference between a scientific legal system and a political one, it is necessary to know that scientific law developed in the absence of any legislature or Congress or Parliament whatever.
The greatest legal document ever to be written is the United States Constitution. The constitution is ultimately a series of power compromises and is the foundation of common law. Merriam-Webster defines common law as " the area of law that has to do with the subject matter and with the interpretation and construction of constitutions or that deals with the nature and organization of government" (Constitutional Law). Cases involving constitutional law are heard by the United States Supreme Court where judgment is based on the U.S. Constitution. Of the various different articles seated in the constitution, three of them describe a system of checks and balances dividing the national government into three branches. This is also called separation of powers (Beatty, Samuelson, Bredeson 57).
My English 1310 course was taught by Professor Daniel Stuart. He taught us the concept of academic writing and why it is important. Academic writing is the process of down ideas, using a formal tone, deductive reasoning and third person. Writing done to carry out the requirements of a college or university on a research based level. It requires a starting point or introduction, followed by a thesis on the preferred topic, then comes proving and disproving of the evidence based arguments. Learning academic writing is important because it is a way to communicate our thoughts clearly and originality. It helps us think and see what evidence we can come up to contribute to that thinking. This course approached this idea of academic writing by
-Common Law: the “law of the land”(Pool 127), which was built up over many centuries
Something more common is stare decisis, which is a type of methodology, and common law that they use along with interpreting the constitution. It is used so judges have some type of consistency and are bound to their past decisions. Stare decisis there are four primary reasons to follow it, it treats cases the the same, makes the law more predictable, strengthens judicial decision making and furthers stability (Oldfather, 2014). This is important in regards to constitutional interpretation because it is basically saying that judge is also bound to past constitutional interpretation. Some of the precedents produced by stare decisis are bad, but that’s because the system is not perfect. The implementation of precedence is also complicated because you have to find cases that are sufficiently alike and most cases are not identical (Oldfather, 2014). Another significant factor in stare decisis, is that the courts usually feel more comfortable in overruling constitutional precedents than amending the constitution, which is much more difficult. Stare decisis is commonly used in adjudication, probably the most prominent articulation of it was in Planned Parenthood v. Casey, where they analyzed if they wanted to overturn Roe v. Wade, in terms of its workability (Oldfather,
The UK courts obtain the power to decide whether the governmental authority has acted ‘Ultra Vires’. This ensures they do not act outside limits of their legal power, this includes both formal and substantive grounds. Both proportionality and natural justice are crucial components for judicial review of a case and therefore, formal and substantive elements are required to set out laws. There seems to be no compelling reason that this may not also be the most salient solution for the rule of law, however in my opinion, good procedures are not as rewarding as the laws content when it concerns the publics lives and
It was created with the idea that as the law was handed down from the King’s Courts, it represented the common custom of the people; Developing from three English Crown courts of the 12th and 13th centuries who started deciding in disputes were local or manorial courts had jurisdiction before: The Exchequer, The King’s Bench and the Common Pleas. Usually, there are no formal codes, texts or regulations that common law relies on
The English legal system is ostensibly embedded on a foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions
...n questioned. It has been suggested time and again that the sovereignty of parliament arises from common law and may be overridden by basic norms of the same common law in some scenarios, particularly the central elements of the principle of rule of law, such as access to justice.
A major impediment of the common is the tendency to lead to perpetuity of bad decisions once a precedent has been set. If there is no amendment and the same ruling is applied, that bad decision will be subsist and will be perpetuated. Since the common law system revolves around following antecedents, it usually takes a long while for change to occur. Unfortunately, before this change is effected, the bad decision will be upheld as long as the change does not come into effect. This is one area where the codified system of law has an advantage as it is rules based approach to law making designed to provide a comprehensive code of laws for the area in question.
The meaning of English Legal System is stated out by Cownie and Bradley in the English Legal System book . There are many sources that build up the English Law as it is today. The main sources of English Law consist of Common Law, parliamentary legislation and delegated legislation. As stated in Gary Slapper & David Kelly’s English Legal System book , there are many different interpretations of the phrase ‘source of law’ where in this book the law is made up of three main sources; where in Martin Hunt’s “A” Level Law , though there are different sources that make up the English law, these sources are differentiated in two main categories with various minor sources.
Firstly in this report, I will be giving the different definitions of rule of law by different philosophers; secondly, I will be applying the rule of law to the English Legal system and thirdly I will be explaining separation of powers with a focus on the impartial judiciary. Finally, I will be using cases to support every detailed point given.
Law is the foundation of central structures of social life on which society’s integrity depends, which is why Petrazycki, Ehrlich and Habermas perceive it to be a key steering mechanism in society,