Historical And Cultural Roots Of The Civil Law System Essay

Historical And Cultural Roots Of The Civil Law System Essay

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Over the years, different jurisdictions had built their specific system of rules of conduct to govern behaviour. These legal systems, influenced by historical and cultural roots, can be distinguished in two families, the Civil law and the Common law legal systems. The distinctions lies in the process in which each decision is make by the judge and on the legal sources that shapes the law. Indeed, by contrast to the Common law system, which is largely based on Precedents, meaning the decisions that have already been made by judges in similar cases, the Civil law system is based on legislator’s decisions and legal codes with which judges have to justify their judgment . Consequently, instead of referencing to concepts and rules embody in a Code as the first legal authority to justify their decisions, the judges in a Common law system will apply or inspire themselves from the principles brought to light in previous judicial decision . However, even if there is a big gap between these to systems, the rapid evolution of our commercial transaction and the new needs of business had forced many countries of Commercial law jurisdiction to reconsider the pros and cons of codification.

This brings me to modern debate over the possible codification of English Commercial law. While there are lots of authors who are argued in favour of this codification since two centuries, practitioners and business in the English community had always been afraid about this idea. To understand the context of this debate, I will, first, briefly explain what do we generally mean by the term ‘codification’. Then, I’ll take few points about the origins of English commercial law and describe its modern definition. Finally, I will outline the main ...

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...oners would be doomed to fail.


A little over two centuries after the first proposal of commercial law codification, we saw that the evolution of every system is characterized by a constant interplay between legislative and judicial action . Nevertheless, the English commercial law should not be codifying as an integrated corpus of law because it would limit the freedom of contract. Besides the constant need of revision of the code, it would also stifles the dynamic evolution of Common law principles trough the judicial decision. Then, the political structure of England is not a Federal system as the United States, so there is no need to harmonize conflicting laws. Finally, the lack of support from the business and practitioners’ communities reflects an important gap between the England philosophy and the principle of codification.

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