Today there exist four major legal systems in the world, these systems being; common law, socialist law, civil law and Islamic law. All these systems differ from each other, most prominently in their court systems Common law is composed of three major characteristics, judge- made law, precedent and and uncodified regulation. In the United States the legal system that is used is common law. While most countries in the world either categorized themselves in either common law or civil law systems, the major difference between these two is there source of law.
A few of the major characteristics of the United States laws system are federalism, multiple sources of law, and judicial decisions If Americans had to possibility to choose under which
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It is the rulings made by previous courts are used as source that guides judges a lawyers in similar cases. Judges and lawyers turn to these precedents as a way to know how a case might turn out and as a way to advice a client. “Precedents are established in appellate court opinions, which discuss the legal questions in the case and examine previous court decisions.” (Neubauer, Mienhold. Chapt.2.26) it is through the accumulation of precedent that laws are employed and policy is derived from court rulings. “Precedent provides stability, coherence, and predictability.” (Neubauer, Mienhold. Chapt.2. 27) it is coherent is such ways that it allows fluidity in the judicial system it is just because it allows for two similar cases to be tried in similar …show more content…
They are able to make case-law, set precedent and essentially decide on a case based on their interpretation of a law. Judges in the United States are similar to referees because in theory they are to be neutral to both sides of the case and are there to ensure that both sides “playing” by the rules and following the guidelines. This is important because it makes the judge a “passive decision maker” (Neubauer, Meinhold,Chapt.2.29) One of the major characteristics of common law is the uncodified laws and regulations, it is a compilation of judicial opinions (precedent) that act as laws. In comparison Civil law is “a body of law characterized by a compilation is laws in writing.” (Neubauer, Meinhold. Chap.2.19) this code of laws serves as a solution for all disputes brought to the courts. The role of judges in the civil law system differs to the of the one in the common law system, while in the common law system a judge can be seen as the “referee” (www.diffen.com/difference/Civil_Law_vs_Common_Law ) in civil law judges take a more active role in the case. Similarly, as a lawyer would act in a common law court the judge in the civil law court is the inquisitor, the judge is the interpreter of the
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.
Types of influencing factors on legal traditions include: cultural, economic, political and social contexts (Different Legal Traditions, 2012). For example, think of Paul’s scenario when he was being tried for causing unrest among Jewish people in Roman court, but the Jewish people did not want Felix to try Paul court, and instead, wanted Paul handed over to them for a trial in Jerusalem. Paul is allowed to be sent to appear before the emperor and he attests that there are “hidden charges or motives” for his political prosecution. Paul is exposing an “unmentioned sub-story” (certain Jews in particular who plan on killing Paul during his location transfer) that relates to his issues and imprisonment. Paul asked the court to hear all sides of the issues before making a decision on Paul’s case. Paul was grateful to stand trial before Felix because Felix was familiar with these Jewish people and the issues which were really at stake. Paul could easily state his complicated case before Felix, with Felix’s ability to follow along with all the moving pieces like culture, religion, and politics, and how they were influencing this particular
He is one of nine Justices, and has the major role of interpreting the Constitution. This allows the Supreme Court to strike down any law passed in the country if, in the view of the Court, it is not constitutional. (Burns, 371-372) The Constitution is very ambiguous in the wording and gives the Court considerable room in the interpretation, thus giving It power.
Throughout the years there has been limitless legal cases presented to the court systems. All cases are not the same. Some cases vary from decisions that are made by a single judge, while other cases decisions are made by a jury. As cases are presented they typically start off as disputes, misunderstandings, or failure to comply among other things. It is possible to settle some cases outside of the courts, but that does require understanding and cooperation by all parties involved. However, for those that are not so willing to settle out of court, they eventually visit the court system. The court system is not in existence to cause humiliation for anyone, but more so to offer a helping hand from a legal prospective. At the same time, the legal system is not to be abuse. or misused either.
In the United Kingdom, out of 40 major regions England and Wales shares the same legal system which is the English Legal System as commonly known and which is the basis of the common law, and is the same system used in most commonwealth countries.
The Judicial Branch consists of the United States Supreme Court and the lower federal courts. Their role is to hear cases that challenges the legislation or are in need of interpretation of that legislation. (Phaedra Trethan, 2013) (Federal Government, 2003) (Sparknotes, LLC, 2011) (Independence Hall Association, 2008-2012)
To sum up for each sources, regarding to Judicial precedent, to make decision in the court, the judge’s decision is bound by the previous decision in higher court. This is based on the doctrine of stare decisis. The binding part is called racio decidendi. The rest of non-binding part is obiter dicta. Regarding to Statute law, this is also called Acts of Parliament, and this is the primary legislation within the English law. Statutes are formed by the Parliament with very long process. While the procedure of creating the Acts of Parliament are very huge and it is not flexible, the advantage is to be able to influence the public opinion by MPs. As the last part of the source of law, Delegated legislation, this is also called Secondary legislation. It is formed of statutory instruments, bye-laws and orders in council. The number of Delegated legislation is more than Acts of Parliament, because for creating secondary legislation is far more flexible than doing for Statute law. moreover, the reason why delegated legislation is necessary is that for making some particular law, the opinions or knowledges of experts or local community is needed. However, by means of parliament sovereignty delegated legislation does approve only under enabling Act and Parliament is always controlling the power. Even if by comparing each fundamental parts, it is difficult to say which
“A Binding Precedent is a decided case which a court must follow even though it is considered to have been wrongly decided…” (Terence Ingman, 2002, Page 420). “A Persuasive Precedent is one which is not absolutely binding on a court but which may be applied” (Terence Ingman, 2002, Page 420) Bromley London Borough Council V Greater London Council (1982), Searose Ltd V Seatrain (UK) Ltd (1981). There are certain elements that Judicial Precedent is dependant upon, they are that the material facts of the case must be the same, the principle must be a proposition of law, it must form part of the Ratio (see below) and that there has to be sufficient and accurate reports of earlier decisions.
Both parties present their cases before a judge who moderates and a jury of people with no legal training decides on the facts of the case. The judge evaluates the evidence, the jury decisions on the facts and applies the appropriate law to it, then provides a judgement in favour of one of the parties. After the decision, if one of the parties believes it was unfair, he may appeal it to a higher court, in such appeal; courts may only review findings of law, not the facts.
INTRODUCTION: Parliament, the supreme law-making body, has unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus, the real role of a judge in any legal system continues to be a phenomenon questioned by many.
Where the Magistrates Court, Crown Court and the County Court are considered as inferior courts; both civil and criminal divisions of courts have little difference. The court hearing first instance of a criminal case is the Magistrates Court. However, when there is a case concerning on a more serious criminal offence, the case would be first heard in the Crown Court instead. First instance of civil cases are usually tried in the Magistrates Court and rarely in the County Court.
In the common law legal system, laws are created by and refined by judicial formation. This implies that a ruling in a case currently pending depends on the rulings made in previous cases and affects the law to be applied in future cases. Equity doctrines, however, was developed and administered in England by the high court of chancery in the exercise of its
The law serves many roles in business and society. Where this is most apparent is in its three classifications:
Common law is usually called the law established on the basis of judges’ decisions, therefore, judgments and decisions made by judges play an important role in crystalizing the source of law in common law countries. This nature of the common law derives from a doctrine that has developed officially since the 19th century, namely ‘the doctrine of precedent’ or ‘stare decisis’. This doctrine has been seen as ‘the cornerstone of a common law judicial system’ in general since it was approved as a compulsory principle of English law. The doctrine strictly requires courts in a common law country to adhere and apply directly the decisions and arguments in the judgments concluded by other courts in that state when it deals with cases. Nevertheless, the court does not have to follow previous positions and conclusions of all courts in the same judicial system, since stare decisis only requires the court to adhere to previous decisions of courts which stand at higher level in the same judicial hierarchy.
In short law is an entity that cannot be quantified and is wide in nature, therefore while analysing it or referring to its principles one must be able to look at law from his/her point of view as well as from the historical and philosophical point of