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LWSO201 - Civil and Common Law Systems_12.doc

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Law and Society
LWSO 201
Marywyatt Sindlinger

Civil and Common Law Systems 1) Civil Law System: a) Defined: a comprehensive compilation of rules covering all aspects of an area of law b) Applies in Quebec • a comprehensive compilation of rules covering all aspects of an area of law • 60% of the world uses this system • largest legal system • originated in the Roman Era • listed rules that applied to the empire (collect and organize roman law) • 1 - codification - collection of legal principles • those legal principles define a comprehensive compilation • 2 - legal principles are generally stated (broadly) • philosophers go around and see what the best system is and then write down • substantive rules(broad) /procedural rules (specific) • promulgated by legislation • the civil law relies on codes, court cases play a secondary role (limited affect on other cases) • no principle or precedent in a civil law system • rule of a judge is different — inquisitorial • common law — passive( can't go interview witnesses or look at the crime scene - restricted) • rule of judge in a civil - what code applies, decision - won't have a precedent value • we have this in Quebec (french based system) • civil code applies to provincial jurisdiction • all laws, codified them - criminal code • different from common law: • statute based • codified • decision are made form a code • but each decision has no precedential value 2) Common law system: judicial decisions as the source and interpretation of the law a) Stare decisis/precedent: “to stand by decision and not disturb the undisturbed” b) Judges follow the rulings in similar cases c) Benefits: continuity, certainty, rule of law, flexibility – linked to rule of law, fairness and predictive value d) Problems: entrenches bad decision and particular ideologies e) Applies in UK, All provinces in Canada but Quebec (with some overlap) • case law - source of law in a common law system • AKA judge made law • 2nd most common legal system - 35% of world's countries • originated in Great Britainin the 11th century • early courts - extensions of the king (travelled and made the law common) • like cases should be decided alike • starry decide - rule of precedence (rule es
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