Legal systems of Europe and the USA
What is Law?
Law can be defined as a body of rules created by the state that governs the conduct of its
citizens.
Separation of powers: Checks and balances (Locke, 17th century): Judicial, executory and
legislative branches.
Differences and Similarities between Civil and Common Law
Common Law (English-speaking countries) is a law based on precedent. Common law judges
justify their findings and decisions by referring to precedents and social norms, or by broad
considerations of rationality presupposed by public policy. The common law generally
functions with an adversarial process (system) in which two advocates (lawyers) represent their
parties’ position before the jury and the judge, who in return attempt to determine the truth. In
layman’s words, the common law reads cases and argues from them. It’s also a faster process.
Civil law is a legal system originating from Western Europe, intellectualized within a
framework of late Roman law, and whose most prevalent feature is that its core principles are
codified into a referable system which serves as the primary source of law. The civil law,
unlike the common law, functions with an inquisitorial system whereby the judge is supposed
to find out the truth, while the lawyers often have to respond to the judge rather than develop
arguments with him. In layman’s words, the civil law method is taught by reading a code and
arguing from its comment or interpreting it.
Hierarchy and the Sources
The constitution takes precedent over statues and statues over other rules issued by legislature
and governmental agencies.
Precedence means that the higher law prevails in the event of conflict.
The sources are: legislation, commentaries, cases (court’s decisions), natural justice (natural
law), usages and scholarly literature.
Criminal Law vs. Civil Law
Criminal law prohibits behaviour that is considered so undesirable that the state itself will
normally take action to enforce it and may impose relatively severe penalties. Criminal law is
enforced by the state and aims to protect the public from anti-social behaviour.
,Civil law (in Europe this is also regarded as the law of obligations) establishes relations ships
between parties, and individuals and businesses are expected to take legal actions themselves
and the sanctions. Civil law provides remedies to recover damages ect. Civil law enables
individuals to enforce rights governing their formal and informal relationships in the courts.
Standard of proof: in criminal procedure it is necessary to prove beyond the reasonable doubt;
in civil law the standard is much lower – only a breach of law needs to be proved on the balance
of probabilities.
Legal professions
Judges, advocates/lawyers/attorneys at law, scholars/academics/professors, notaries, public
prosecutors.
Core Principles
Equity (is commonly said to “mitigate the rigor of common law”, allowing courts to use their
discretion and apply justice in accordance with natural law) and certainty.
The principle of legality is the legal ideal that requires all law to be clear, ascertainable and
non-retroperspective.
Retroactivity in law is the application of a given norm to events that took place or began to
produce legal effects, before the law was approved most countries are guided by the general
principle of irretroactivity of law.
The presumption of innocence (in dubio pro reo) is the principle that one is considered
innocent until proven guilty application of this principle is a legal right of the accused in a
criminal trial, recognized by many nations. The burden of proof is thus on the prosecution. If
reasonable doubts remain, the accused is to be acquitted.
Right to a fair trial: everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and obligations and of any
criminal charge against him.
Right to a jury trial: anyone has the right to be heard and judged by fellow country-man.
Good faith (bona fides) in law denotes the mental and moral states pf honesty and conviction
regarding either the truth or the falsity of a proposition, or of a body of opinion; likewise
regarding either the rectitude or the depravity of a line of conduct.
Judicial review and Jurisdiction
In modern legal systems, the main remedy against the state is provided by a procedure known
as judicial review. This allows individuals or business to ask a court (usually administrative or
high court) to rule on whether a decision taken by the state (or public body acting with the
authority of the state) was lawful.
,A jurisdiction is the territory in which particular law and legal system apply. It divides into
national and supranational.
The Interpretation
Legislation involves an inescapable measure of uncertainty, which can be made certain only
through judicial interpretation. Judges inevitably determine the meaning and effect that should
be given to any particular piece of legislation.
a) The literal approach (the judge should look primarily to the words of the legislation in
order to ensure its meaning and should not look outside - UK)
b) The purposive approach (interpretative role of the judge should include also the power
to look beyond the words of statue in pursuit of the reason for its enactment and that
meaning shall be constructed in the light of that purpose - Continent)
c) The contextual approach (judge should consider the words in question against the
background of other parts of the statue)
d) The principles approach (judge should take into account general principles of
constitution and of law in general)
e) The historical approach (judge should look at the documents about the history of
legislation prior to its enactment)
f) The objective approach (statutory provision shall be interpreted in the light of current
circumstances)
g) The teleological approach (judge should consider the objective or purpose of the
legislation)
Arbitration and ADR
Arbitration refers to a procedure where the parties to a dispute agree to appoint someone to
resolve it (an arbitrator) and to be legally bound by the arbitrator’s decision. This offers
confidentiality, flexibility and specialist knowledge of arbitrator.
Alternative dispute resolution (ADR) represents a broad term that may be used to refer to any
method of resolving disputes not involving arbitration or court proceedings. The outcome is
not binding on the parties and it is very flexible. Types of ADR: mediation, conciliation…
Essential legal terms
The claimant and defendant: these are the parties in civil case (action). The claimant sues
(brings the case against) the defendant.
The prosecution and the defence: parties to a criminal case. The defence is sometimes called
the defendant or the accused.
, The appellant and the respondent: parties in an appeal hearing. The appellant is the party
who is bringing the appeal against the decision of the court below in which the respondent won
his or her case.
PRACTICAL APPLICATIONS
1. Interbrew SA v. Competition Commission (2001)
In 2001 the Belgian brewing firm Interbrew applied for judicial review of a decision taken under
UK merger control legislation by a regulator called the Competition Commission. Merger
control legislation is designed to prevent firms acquiring a dominant market position by simply
buying up their competitors. The decision would have forced Interbrew to sell the brewing
company Bass, which it had just bought. Interbrew argued that the Competition Commission’s
procedures had been unfair and required a judicial review. Would Interbrew succeed in his
argumentation?
The High Court Agreed and ruled that the Competition Commission’s decision should be
“quashed” (declared invalid). The Government asked another competition regulator, the Office
of Fair Trading (OFT), to reconsider the merger; although Interbrew was still forced to sell
some of its brewing interests in the UK, it achieved its main objective, which was to keep Baas
brewery.
2. Inland revenue Commissioners v. Hinchy (1960)
Article 25 (3) of the Income Tax Act 1952 states that any taxpayer who did not complete their
tax return is subject to a fixed penalty of 20€ plus treble the tax which he ought to be charged
under the Act. The question that have to be decided is whether the additional element of the
penalty should be based on the total amount that should have been paid or merely the unpaid
portion of the total?
The House of Lords adopted a literal interpretation of the statue and held that any taxpayer in
default should have to pay triple their original tax bill.
3. Alpha business Machines case
Alpha Business Machines Limited sells computer equipment. It has supplied some hardware to
a business customer at a cost of 30.000 €. The customer paid a deposit of 5.000 €, with the
remaining sum on delivery. Alpha has delivered the equipment and sent an invoice for the
remaining 25.000 €. The customer refused to pay; it argues that some of the equipment does
not work. Alpha’s engineers have looked into the complaint and they believe that the problems
are the fault of customer. The customer does not accept this and still refuses to pay. Eventually,
Alpha decides to start legal action to recover 25.000 €.
The court would order the defendant to pay 25.000 together with interest on that sum from the
date on which it should originally have been paid until the date of actual payment. It would
normally order the defendant to pay Alpha’s reasonable legal costs as well.
4. Adler v. George (1964)
A CNDF demonstrator who invaded a sentry post at an army base was charged with obstructing
a member of HM Forces „in the vicinity of a prohibited place” under the Official Secrets Act
What is Law?
Law can be defined as a body of rules created by the state that governs the conduct of its
citizens.
Separation of powers: Checks and balances (Locke, 17th century): Judicial, executory and
legislative branches.
Differences and Similarities between Civil and Common Law
Common Law (English-speaking countries) is a law based on precedent. Common law judges
justify their findings and decisions by referring to precedents and social norms, or by broad
considerations of rationality presupposed by public policy. The common law generally
functions with an adversarial process (system) in which two advocates (lawyers) represent their
parties’ position before the jury and the judge, who in return attempt to determine the truth. In
layman’s words, the common law reads cases and argues from them. It’s also a faster process.
Civil law is a legal system originating from Western Europe, intellectualized within a
framework of late Roman law, and whose most prevalent feature is that its core principles are
codified into a referable system which serves as the primary source of law. The civil law,
unlike the common law, functions with an inquisitorial system whereby the judge is supposed
to find out the truth, while the lawyers often have to respond to the judge rather than develop
arguments with him. In layman’s words, the civil law method is taught by reading a code and
arguing from its comment or interpreting it.
Hierarchy and the Sources
The constitution takes precedent over statues and statues over other rules issued by legislature
and governmental agencies.
Precedence means that the higher law prevails in the event of conflict.
The sources are: legislation, commentaries, cases (court’s decisions), natural justice (natural
law), usages and scholarly literature.
Criminal Law vs. Civil Law
Criminal law prohibits behaviour that is considered so undesirable that the state itself will
normally take action to enforce it and may impose relatively severe penalties. Criminal law is
enforced by the state and aims to protect the public from anti-social behaviour.
,Civil law (in Europe this is also regarded as the law of obligations) establishes relations ships
between parties, and individuals and businesses are expected to take legal actions themselves
and the sanctions. Civil law provides remedies to recover damages ect. Civil law enables
individuals to enforce rights governing their formal and informal relationships in the courts.
Standard of proof: in criminal procedure it is necessary to prove beyond the reasonable doubt;
in civil law the standard is much lower – only a breach of law needs to be proved on the balance
of probabilities.
Legal professions
Judges, advocates/lawyers/attorneys at law, scholars/academics/professors, notaries, public
prosecutors.
Core Principles
Equity (is commonly said to “mitigate the rigor of common law”, allowing courts to use their
discretion and apply justice in accordance with natural law) and certainty.
The principle of legality is the legal ideal that requires all law to be clear, ascertainable and
non-retroperspective.
Retroactivity in law is the application of a given norm to events that took place or began to
produce legal effects, before the law was approved most countries are guided by the general
principle of irretroactivity of law.
The presumption of innocence (in dubio pro reo) is the principle that one is considered
innocent until proven guilty application of this principle is a legal right of the accused in a
criminal trial, recognized by many nations. The burden of proof is thus on the prosecution. If
reasonable doubts remain, the accused is to be acquitted.
Right to a fair trial: everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and obligations and of any
criminal charge against him.
Right to a jury trial: anyone has the right to be heard and judged by fellow country-man.
Good faith (bona fides) in law denotes the mental and moral states pf honesty and conviction
regarding either the truth or the falsity of a proposition, or of a body of opinion; likewise
regarding either the rectitude or the depravity of a line of conduct.
Judicial review and Jurisdiction
In modern legal systems, the main remedy against the state is provided by a procedure known
as judicial review. This allows individuals or business to ask a court (usually administrative or
high court) to rule on whether a decision taken by the state (or public body acting with the
authority of the state) was lawful.
,A jurisdiction is the territory in which particular law and legal system apply. It divides into
national and supranational.
The Interpretation
Legislation involves an inescapable measure of uncertainty, which can be made certain only
through judicial interpretation. Judges inevitably determine the meaning and effect that should
be given to any particular piece of legislation.
a) The literal approach (the judge should look primarily to the words of the legislation in
order to ensure its meaning and should not look outside - UK)
b) The purposive approach (interpretative role of the judge should include also the power
to look beyond the words of statue in pursuit of the reason for its enactment and that
meaning shall be constructed in the light of that purpose - Continent)
c) The contextual approach (judge should consider the words in question against the
background of other parts of the statue)
d) The principles approach (judge should take into account general principles of
constitution and of law in general)
e) The historical approach (judge should look at the documents about the history of
legislation prior to its enactment)
f) The objective approach (statutory provision shall be interpreted in the light of current
circumstances)
g) The teleological approach (judge should consider the objective or purpose of the
legislation)
Arbitration and ADR
Arbitration refers to a procedure where the parties to a dispute agree to appoint someone to
resolve it (an arbitrator) and to be legally bound by the arbitrator’s decision. This offers
confidentiality, flexibility and specialist knowledge of arbitrator.
Alternative dispute resolution (ADR) represents a broad term that may be used to refer to any
method of resolving disputes not involving arbitration or court proceedings. The outcome is
not binding on the parties and it is very flexible. Types of ADR: mediation, conciliation…
Essential legal terms
The claimant and defendant: these are the parties in civil case (action). The claimant sues
(brings the case against) the defendant.
The prosecution and the defence: parties to a criminal case. The defence is sometimes called
the defendant or the accused.
, The appellant and the respondent: parties in an appeal hearing. The appellant is the party
who is bringing the appeal against the decision of the court below in which the respondent won
his or her case.
PRACTICAL APPLICATIONS
1. Interbrew SA v. Competition Commission (2001)
In 2001 the Belgian brewing firm Interbrew applied for judicial review of a decision taken under
UK merger control legislation by a regulator called the Competition Commission. Merger
control legislation is designed to prevent firms acquiring a dominant market position by simply
buying up their competitors. The decision would have forced Interbrew to sell the brewing
company Bass, which it had just bought. Interbrew argued that the Competition Commission’s
procedures had been unfair and required a judicial review. Would Interbrew succeed in his
argumentation?
The High Court Agreed and ruled that the Competition Commission’s decision should be
“quashed” (declared invalid). The Government asked another competition regulator, the Office
of Fair Trading (OFT), to reconsider the merger; although Interbrew was still forced to sell
some of its brewing interests in the UK, it achieved its main objective, which was to keep Baas
brewery.
2. Inland revenue Commissioners v. Hinchy (1960)
Article 25 (3) of the Income Tax Act 1952 states that any taxpayer who did not complete their
tax return is subject to a fixed penalty of 20€ plus treble the tax which he ought to be charged
under the Act. The question that have to be decided is whether the additional element of the
penalty should be based on the total amount that should have been paid or merely the unpaid
portion of the total?
The House of Lords adopted a literal interpretation of the statue and held that any taxpayer in
default should have to pay triple their original tax bill.
3. Alpha business Machines case
Alpha Business Machines Limited sells computer equipment. It has supplied some hardware to
a business customer at a cost of 30.000 €. The customer paid a deposit of 5.000 €, with the
remaining sum on delivery. Alpha has delivered the equipment and sent an invoice for the
remaining 25.000 €. The customer refused to pay; it argues that some of the equipment does
not work. Alpha’s engineers have looked into the complaint and they believe that the problems
are the fault of customer. The customer does not accept this and still refuses to pay. Eventually,
Alpha decides to start legal action to recover 25.000 €.
The court would order the defendant to pay 25.000 together with interest on that sum from the
date on which it should originally have been paid until the date of actual payment. It would
normally order the defendant to pay Alpha’s reasonable legal costs as well.
4. Adler v. George (1964)
A CNDF demonstrator who invaded a sentry post at an army base was charged with obstructing
a member of HM Forces „in the vicinity of a prohibited place” under the Official Secrets Act
