Introduction Anglo American Legal System 5n5x67

An introduction to the anglo-american legal system Civil Law, or code law, is one of two major legal systems currently in use in the Western world. It is based primarily on the written codes of Justinian and Napoleon. The predominant feature of civil law is the attempt to establish a body of legal rules in one systematized code, a single comprehensive legislative enactment. In this system, judicial decisions, case law, are not a source of law, although judicial precedents may be useful in the decision of cases. Civil Law remains the basis of the legal system in Italy, , Spain, , and other parts of the Western world that were once included in the Roman Empire. The civil law may be described as a modern adaptation of Roman law, but it is important to note that many changes were made in the course of time in all of the modern civil law systems which set them to a substantial extent apart from ancient Roman Law. The CommonLaw is a system which has its roots in medieval England, where disputes were resolved on a case-by-case basis, binding the arbiter of a dispute to the rule elicited from the determination of an earlier, similar dispute – hence common law. Common law is the second of the two major legal systems currently in use in the Western world. The common law was adopted by the American states during and after the War of Independence, and after the attainment of independence it became the foundation of the laws of the several states. Other common law jurisdictions are England, Scotland (with a strong civil law ixture), Ireland, Canada (with the partial exception of Quebec), Australia, and New Zealand. The state of Louisiana, in the United States of America, which was acquired in 1803 from the French, is in part a civil law jurisdiction. Its comprehensive civil code, which covers the fields of contracts, torts, property, family law and inheritance, may be traced back to the Napoleonic code of 1804. But Louisiana has also had a strong influx of the common law, especially in the areas of procedure and evidence. Other New World jurisdictions that form a blend of the civil law and common law, are Puerto Rico and the Canadian province of Quebec. An understanding of the concepts underlying the common law of England is thus vital to any discussion of American law, including American business law. Sir William Blackstone’s Commentaries, published just before the American Revolution, are generally considered to be the best statement of English common law as it existed when the United States became an independent nation. According to Blackstone, the common law is that “ancient collection of unwritten maxims and customs” which have “subsisted immemorially in this kingdom.” These principles are revealed by the courts of law “through experience in the rendering of judicial decision.” Common law is, therefore, the overall accumulation of judicial decisions, known as case law. England has no written constitution. The basis of its constitution is the common law, derived mainly from precedent and incorporating also certain landmark documents, such as the Magna Carta (1215) and English Bill of Rights (1689).

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American common law includes not only the “ancient maxims and customs” inherited from England, but also all subsequent and modern case law as developed and pronounced from time to time. COMPARING THE SYSTEMS The starting point of legal reasoning in civil law countries is almost always a statute or code provision. Judicial precedents, at least in theory, play a secondary role; their authority is considered to be no greater then that of legal writers. However, in actual practice prior decisions are widely followed by the courts. In the common law orbit, legal arguments often center around the interpretation and applicability of earlier judicial decisions, especially those rendered by the highest court of the jurisdiction in question; but statutes and istrative regulations are gaining an ever-increasing importance. Certain differences also exist in the structure of legal procedure in the two rival systems. The judges in civil law jurisdictions take a very active part in the interrogation of witnesses and conduct of the proceedings, and the role of counsel is correspondingly diminished. Under the system of the common law, the initiative in a court trial is exercised primarily by the attorneys for the parties, while the judge plays a less active role. Civil law systems, because of the dominant position of the judge, are often referred to as “inquisitorial,” in juxtaposition to the “adversarial” model of the common law, in which the attorneys for the parties bear primary responsibility for shaping the content and course of litigation. As with differences in legal reasoning, these differences in the role of the judge between civil law and common law systems are tending to narrow over time. In constitutional and istrative litigation especially, modern American judges play an increasingly active role in the definition of issues and the development of facts at trial. PRECEDENT AND COMMON LAW STARE DECISIS As common law developed, a judge confronted with a puzzling new case would search the literature for a similar case to determine whether a precedent had been established. If so, the judge would follow the prior decision. If a case arises for which no modern American or English precedent can be found, the court sometimes bases its decision on the Justinian code, from which some areas of the common law are derived. In the absence of a precedent, a court may follow its own sense of justice or fairness, with due regard for prevailing custom or morality. In other words, the requirement that courts follow their own precedents is based on the legal principle of stare decisis or “stand by the decision.” Stare decisis binds all of the lower courts of a jurisdiction to determinations rendered by the highest court in that same jurisdiction. Fonte BODENHEIMER, E.; OAKLEY, J. B.; LOVE, J. C. An introduction to the angloamerican legal system. 4ª ed. Thomson West, 2004.

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