Comparative Legal Systems Research Essay

Legal systems all over the world are typically based on four distinct fundamental systems. (Garner 177). These legal frameworks comprise common law, civil law, statute law, and religious law. (Garner 177). However, these systems can occasionally be merged to create the basic structure of a legal system in another nation. Every nation in the world has a distinctive legal system that is typically molded by that nation’s distinct past and incorporates individual specific variations. (Garner 177-8). In comparison to the other three systems of law, civil and common law are the ones that are most commonly used around the world. (Garner 178). Civil Law is highly widespread by landmass whereas common law is widely practiced by very many people making the two systems very common.

Another very important aspect important in law is case law. It is a very common and highly employed legal system that is viewed with keenness even in the nations practicing other highly legislated systems such as statutory, common, civil, or religious law. (Garner 180). What exactly is case law? Just as it has been described, this is a pivotal component with regards to understanding and interpreting the common law which is highly practiced. It can be described in simple terms as a kind of law that is developed by senior judges in courts over time. (Garner 182). Normally, judgments delivered by senior courts of land become solutions to the disputes which were existent between parties presented in the case/court. After judgment has been delivered, it becomes apparent that any future dispute will be solved in a similar way. In more legal terms, it normally becomes so precedent that the following disputes assume similar resolutions to the former but of similar nature. (Marc 2). One of the core principles reinforcing case law is the precedent and is normally built upon the hierarchy of the courts. (Marc 3-4). Any decision made by the higher court on a dispute forms the precedent. (Marc 4). These precedents must be followed by the lower courts, and this is the basis of the doctrine of precedent, also known as stare decisis.

Aspects of Case Law

Analysis of case law is the foundation of any legal process. The legislation is a concept that is easily understood by legal professionals across all legal systems. Case law, however, has gained particular importance due to the common law heritage. Case laws are predetermined decisions written to form a guideline for judicial exercises and delivery of judgments. In most cases, these predetermined decisions are written by predecessor judges in superior courts to form the background for junior judges in less superior courts of the land. Whenever judges have to make decisions about a case, they have to follow the previous decisions made by their senior predecessors in the judiciary. This principle is so crucial in maintaining the aspect of predictability in the judiciary.

Courts work together to prevent incidences of contradiction. (Marc 22). When case decisions are documented, they indicate the previous ones being followed and how they will also be used in the future to determine others of similar nature. (Marc 22-3). The previous case being used as a reference is called the precedent. In case the attorneys present cases to the appellate bench, they normally argue about which previous cases and logic should be applied to solving the circumstance in dispute. (Marc 23). The attorneys usually engage intensively in the heavy task of researching about these previous cases and the development of logic to determine the result of the dispute.

Role of Case Law in French

In the French legal system, case law is normally viewed as a paradoxical. France has a good background of Roman civil law which has written laws. (Marc 33). This forms a ground to distrust judge-made laws. Contrary to this, case laws have existed in France for a considerable period of time and its importance and roles have sharply and steadily grown since the Revolution of 1789. (Marc 34). Case law in France is known as jurisprudence and is derived from Latin words juris prudential. (Marc 34). It is important to comprehend the history of case laws to appreciate the role and significance of this kind of law in various countries which practice it. (Marc 34-5). The History of case law in France can be divided into two sections which are the pre-revolution and post-revolutionary periods in France. (Marc 35). The rise in the importance case laws has been evident since the 19th century and has since acquired further definition. However, this importance has exhibited itself so differently in both public and private law.

The French judiciary offers assistance for comprehending the different advancements of the case law. (Marc 35-6). As much as case law in France has gained much significance from the 19th century, it is still not more important than it is in other countries like the US. (Marc 37). One major challenge that the judiciary system of France faces is that there is limited literature in English about the case laws documented.

Role of Case Law in the English Legal System

In the United Kingdom, the legal system was mainly made up of the judge-made laws, or the laws documented based on the solutions reached on the [previous similar cases. (Marc 111). UK laws are used to bring bout uniformity and consistency in the delivery of judgment. Civil Law is highly widespread by landmass whereas common law is widely practiced by very many people making the two systems very common. These laws were known as common law or case laws, and this continued until around the 17th century. (Marc 111). Each jurisdiction had the authority to make its own laws which would determine how judgments were to be made, and Scotland was the most distinct of all the jurisdictions. (Marc 112). From that time, there have been several changes and amendments in the law system through Acts of Parliament which forms the statutory law. (Marc 114). However, case laws have still remained the very important source of law in the United Kingdom. A statement made by a judge about a case can become binding on future judges, hence can become a common law for all other judges to follow in later cases. (Marc 114). There are two factors which determine how the pronouncement of a case can be binding or not in the future cases. These are; the court making the pronouncement must be of significant superiority, and the pronouncement must be in a position or have formed what is termed as ratio decidendi. (Marc 116-7). The courts must, therefore, ascertain any previous case before applying as a reference.

The major function of case law in the English legal system is usually offered in the ordinary law. Case law ensures that there is consistency as well as logical advancement and progression in the law. Contrary to this role, case law in English legal system can be so rigid and even complex. For example, what is considered the law in one instance may not be directly applicable to another case which other judges could think are similar to the precedent. Another reason why case laws are complex is the kind of language used in writing the judgment statements being used as a reference today, may totally be different from today’s language. Due to this reason, many countries, especially in Europe, prefer the codified system where laws are established in legislation and any case applying theme may only be illustrative rather than binding.

Critical analysis of the roles of case law in the French and English legal systems reveals that there are evident disparities within the systems. Concerning the period under which these legal systems were introduced in these nations, it is noted that the English legal system started applying case law earlier (17th century) than the French legal system (19th century). (Marc 122). In both cases, however, this branch of law has been considered important in the delivery of judgment in the judiciary systems of these nations. Both the nations rely mainly on the previous judgment statement as the background for determining the outcome of cases of similar nature and the precedents referred to must have been written by senior judges of higher courts of the land. (Marc 122-3). In both cases it has also been revealed that the case laws are used as complementary laws to the major legal systems in these countries, although a keen observation and analysis may prove otherwise, that they are also used almost as independent systems of law from the four recognized; civil, statutory, religious, and common law. (Marc 124). However, there is also an open distinction in the role of case laws in these two nations. Whereas in the English legal system, the case law ensures that there is consistency as well as logical advancement and progression in the law, in the French legal system it mainly acts as an alternative law to the common Roman civil law being used. (Marc 134). France is dominated by the Roman civil law and which is highly practiced by many people. This thus makes case law in France to be viewed only as an alternative to the legal systems of delivering judgments that are in that country.

In the United Kingdom, the legal system was mainly made up of the judge-made laws, or the laws documented based on the solutions reached on the [previous similar cases. Analysis of case law is the foundation of any legal process. The legislation is a concept that is easily understood by legal professionals across all legal systems. In the French legal system, case law is normally viewed as a paradoxical. France has a good background of Roman civil law which has written laws.

Question Two

Common law is practiced in very many countries throughout the world. At least all the continents of the world are represented by a country or so which practices common law. (Marc 1). Among these countries, Australia and Canada are good examples of the nations where the common law is the main framework of the legal system. In fact, almost all the commonwealth nations practice purely the English-based common law. (Marc 2-3). However, in a case where the common law is not the sole legal system, it is normally practiced alongside other legal systems, in what is termed as hybridization of the legal system. English common law was automatically adopted upon independence. They were inherited on the background of a free settled colony adopting the English laws.

Common Law in Australia

UK laws are used to bring bout uniformity and consistency in the delivery of judgment. Civil Law is highly widespread by landmass whereas common law is widely practiced by very many people making the two systems very common. The Australian law is made up several levels of both codified and uncodified types of law. Among these forms of the Australian laws are; the Australian constitution, statutory laws made by the Federal Assembly and the Australian common law derived from the decisions of the judges. Just like the laws in other British colonies, common law in Australia is the system of law which was developed in the 19the century England and is still being practiced till today. (Wyne 54). However, there has been significant divergence between the common law of Australia and that of England, after over a century of federation. As opposed to the case in the US, the Australian High Court has the overall appellate jurisdiction thus ensuring there is a unified single common law in Australia. (Wyne 55). By 1963, the Australian High court was regarding the decisions of the House of Lords as binding, and there was a significant commonness in both Australian and English common laws. (Wyne 55). However, in 1978, the Australian High Court declared it was no longer bound by the decisions made by the judicial Committee of England, and that was the genesis of the divergence in the common law practiced in these two nations.

Origin of Common Law in Australia

The common law in Australia has a background of the English common law. (Wynes 78). The word common simply means that these laws apply to all people. The common law of the Australia was inherited during the period of European settlement in Australia. (Wynes 78-9). The common laws are usually judge-made laws (case laws). (Wynes 79). These laws were made and refined by the English and later on, after adoption, Australia took over. These were happening during a time when the parliament did nothing concerning law making as opposed to today when the parliament is known for making laws. (Statutory laws).

Common laws in Australia are sourced mainly from the court documents and judgment publications. Common law is a legal system which is established and defined by the courts in Australia. (Wynes 76). The Australian High Court is the highest on the Australian land. (Wynes 76). When an appeal case has been handled and the judgment published, then the decisions and reasons form part of the Australia’s commons law which then binds all the courts everywhere in the country. (Wynes 76-77). Common law in Australia is the system of law which was developed in the 19the century England and is still being practiced till today Common law is practiced in very many countries throughout the world. At least all the continents of the world are represented by a country or so which practices common law. Regarding the common law offenses, the following are still existent in Australia; kidnapping, false imprisonment, defraud, conspiracy, and contempt. However, there are some law offenses which have since been abolished.

Reasons for Adopting Common Law in Australia

By the 18th century, Britain had already established formal laws which would dictate how acquired colonies were to be ruled through peaceful colonization. (Wynes 77). Australia was one of the Britain’s colonies. It was considered a primitive state which had primitive rules and laws. It was the mandate of the Britain to introduce new well-established rules and laws in Australia as a way of civilization. Through this, Australia was capable of taking up the English common laws. The additional reasons for the adoption of the common law in Australia were as follows. Uniformity in both the Australian and English enacted laws was required. (Castles 210). There are instances when divergence in the legal system and delivery of judgment was exhibited for instance in the lawsuit between the Victorian Railways Commission v. Coultas. (Castles 212). The divergence was always because the opinions of the Privy Council and the English precedent were varied. (Castle 212). The only solution to prevent further variance was to adopt the English common law to be applied in the whole of Australian states. Lastly, the Australian courts place a heavy weight on the decisions handed down by the English supreme courts aside from the Privy Council precedents thus giving a room for the adoption of the English common laws till date. (Castles 222-6). All the above are reasons which led to the adoption of English common law in Australia.

Common Law in Canada

Common law in Canada historically evolved from the royal courts of justice in England. These courts have existed since the Norman Conquest of 1066. (John 8-9). Common law is broadly applied and used in most English-speaking nations in the world and Canada is one of the nations where the common law is highly practiced. In fact, it is a system of law which is practiced in all provinces of Canada except Québec. (John 9). However, apart from the common law widely practiced in Canada, they have also adopted another legal system. The Canadians also practice the French civil law, in what could be considered hybridization of their legal system although this is practiced in a single province in Canada.

It is common that as the British colonies were struggling for independence, in most cases the new nations free from colonization would adopt the English common laws as they were at the time of independence and continue using them as their default laws. For instance, Canada received the English statutes and common law to establish the legal system in the new nation. These were happening under Blackstone’s principles. (John 13). In Canada, the English common law was automatically adopted upon independence. They were inherited on the background of a free settled colony adopting the English laws. The adoption and reception of the English common laws in Canada took place long before the country attained independence. (John 13). In most parts of Canada, reception of the English common law was guided by the statutes of reception, although these reception statutes were never part of the process of decolonization. Canada attained formal independence in 1982. (John 14). During this time, there were no reception statutes required since the English common law had gained grounds in Canada long enough though legislation.

A brief analysis of the Canadian and English law systems reveals some similarities (where the Canadian Legal System mirrors the UK’s) and differences. The Canadian common laws used in all provinces except Quebec were adopted from the English common law during colonial rule in Canada. (John 22). This is a clear proof that indeed the Canadian legal system reflects that which is practiced in the UK. The backgrounds of the two legal systems are similar in that in both, it the judiciary (higher courts of the land and senior judges) that makes decisions which then get published and used to bind all other courts and judges throughout. (John 77). The aim of harmonizing such decisions is to prevent collisions and contradictions which have been experienced for example in Australia. (Wynes 66). The entire Canada apart from Quebec province is using English common law. (John 33). Quebec, on the other hand, uses civil laws. (John 33). Common laws are basically termed judge-made laws, and this gives the judiciary in both the nations the authority and power to make laws as opposed to other nations where the legal system is based on statutory laws. Statutory laws are made by the parliamentary assembly. Same to Australia, the common laws are used as the basis of judgment in the courts of law. (Castles 301). Same as in the UK, these laws are used to bring bout uniformity and consistency in the delivery of judgment. Civil Law is highly widespread by landmass whereas common law is widely practiced by very many people making the two systems very common. The legal system in Canada allows the use of common laws in various local courts located in different parts of the country. The above scenario indicates that the legal system in Canada borrows a lot of legal procedures from their colonial masters. The set of the two legal systems are comparable in that in both, it the judiciary (higher courts of the land and senior judges) that makes decisions which then get published and used to bind all other courts and judges throughout.

Works Cited

Castles, Winston. “Limitations on the Autonomy of the Australian States,” [I962]. Public Law, 1989, pp. 185-332.

Charles, Arnold-Baker. The Companion to British History, s.v. English Law, London: Loncross Denholm Press, 2008, pp. 484-98.

Garner, Brian. A Dictionary of Modern Legal Usage, 2nd Ed: New York: Oxford University Press, 2001, pp. 177-98.

John, Brierley. Common Law. The Canadian Encyclopedia, 2016, pp. 1-55. Retrieved from www.thecanadianencyclopedia.ca/en/m/article/common-law/

Marc, Ancel. Case Law in France. Journal of Comparative Legislation and International Law: Vol 16, No. 1, 1943, pp. 1-148. Retrieved from http://www.jstor.org/stable/753975

Wynes, Walloh. Legislatice, Executise and Judicial Powers in Australia, 3rd ed., 1990, pp. 76-112.