LEGAL METHODS
Foundations of Modern Law
THE COMMON LAW AND THE CIVIL LAW TRADITIONS:
● The common law tradition emerged in England during the Middle Ages and was
applied within British colonies across continents.
● Common law is a peculiarly English development. Before the Norman conquest,
different rules and customs applied in different regions of the country.
● The difference between common and civil legal traditions lies in the main source
of law.
● The civil law tradition developed in continental Europe at the same time and was
applied in the colonies of European imperial powers such as Spain and Portugal.
● Law that emerges from the way judges decide concrete cases is known as common
law. Law that is laid down by legislators is known as statute law.
Common Law:
● It is generally uncodified. (no comprehensive compilation of legal rules and statutes.)
● Emerged from the power of kings in England during the middle ages
● Largely based on precedent
● Common law functions as an adversarial system, a contest between two
opposing parties before a judge who moderates.A jury of ordinary people
without legal training decides on the facts of the case. The judge then
determines the appropriate sentence based on the jury’s verdict.
● Unity of law through decisions of the courts
● But also an abundance of legislation, which consolidates, supplements or
overrides judge-made law
● USA, Canada, Australia, New Zealand and other countries of the British
Commonwealth
CIVIL LAW:
● It is codified.
● Originates from Roman law
● Systematic and exhaustive overview of the law set out in legal codes
● Code contains general rules and principles.
,● Countries with civil law systems have comprehensive, continuously updated
legal codes that specify all matters capable of being brought before a court,
the applicable procedure, and the appropriate punishment for each offense.
● Code is the starting point for all reasoning and legal developments.
● Judges are less important in shaping civil law than legislators and legal
scholars.
● Judges are not bound by their own decisions or those of the superior courts.
● Often grouped in the Romanic and the Germanic families.
CIVIL LAW COMMON LAW
LEGAL SYSTEM Legal system originating Legal system
in Europe whose most characterized by case
prevalent feature is that its law, which is law
core principles are developed by judges
codified into a referable through decisions of
system which serves as courts and similar
the primary source of law tribunals.
ROLE OF JUDGES Chief investigator; makes Makes rulings; sets
rulings, usually precedent; referee
non-binding to 3rd parties. between lawyers. Judges
In a civil law system, the decide matters of law
judge’s role is to establish and, where a jury is
the facts of the case and to absent, they also find
apply the provisions of the facts. Most judges rarely
applicable code. Though inquire extensively into
the judge often brings the matters before them,
formal charge. instead relying on
arguments presented by
the part
COUNTRIES Spain, China, Japan, United States, England,
Germany, most African Australia, Canada, India
nations, all South
American nations (except
Guyana), most of Europe
,CONSTITUTION Always Not always
PRECEDENT Only used to determine Used to rule on future or
administrative of present cases
constitutional court
matters
JURY OPINION In cases of civil law, the Juries are comprised
opinion of the jury may only of laypersons —
not have to be unanimous. never judges and, in
Laws vary by state and practice, only rarely
country. Juries are present lawyers — and are
almost exclusively in rarely employed to
criminal cases; virtually decide non-criminal
never involved in civil matters outside the
actions. Judges ensure law United States. Their
prevails over passion function is to weigh
evidence presented to
them
HISTORY The civil law tradition Common law systems
developed in continental have evolved primarily
Europe at the same time in England and its
and was applied in the former colonies,
colonies of European including all but one US
imperial powers such as jurisdiction and all but
Spain and Portugal. one Canadian
jurisdiction. For the
most part, the
English-speaking world
operates under common
law.
SOURCES OF LAW 1. Constitution 2. 1. Constitution (not in
Legislation – statutes and the UK) 2. Legislation –
subsidiary legislation 3. Statutes and subsidiary
Custom 4. International legislation 3. Judicial
Law 5. [Nota bene: It may precedent – common
be argued that judicial law and equity 4.
precedents and Custom 5. Convention
, conventions also function 6. International Law
within Continental
systems, but they are not
generally recognised
TYPE OF Inquisitorial. Judges, not Adversarial. Lawyers
ARGUMENT AND lawyers, ask questions and ask questions of
ROLE OF LAWYERS demand evidence. witnesses, demand
Lawyers present production of evidence,
arguments based on the and present cases based
evidence the court finds. on the evidence they
have gathered.
EVIDENCE TAKEN Evidence demands are Widely understood to be
within the sovereign a necessary part of the
inquisitorial function of litigants’ effective
the court — not within the pursuit or defense of a
lawyers’ role. claim. Litigants are
given wide latitude in
US jurisdictions, but
more limited outside the
US
EVOLUTION Both systems have similar Both systems have
sources of law- both have similar sources of
statutes and both have law-both have statutes
case law, they approach and both have case law,
regulation and resolve they approach regulation
issues in different ways, and resolve issues in
from different different ways, from
perspectives different perspectives
ADVERSARIAL SYSTEM:
An adversarial system is that where the court acts as a referee between the
prosecution and the defence. The whole process is a contest between two parties.
The role of the court is primarily that of an impartial referee between the
prosecution and the defense.
Foundations of Modern Law
THE COMMON LAW AND THE CIVIL LAW TRADITIONS:
● The common law tradition emerged in England during the Middle Ages and was
applied within British colonies across continents.
● Common law is a peculiarly English development. Before the Norman conquest,
different rules and customs applied in different regions of the country.
● The difference between common and civil legal traditions lies in the main source
of law.
● The civil law tradition developed in continental Europe at the same time and was
applied in the colonies of European imperial powers such as Spain and Portugal.
● Law that emerges from the way judges decide concrete cases is known as common
law. Law that is laid down by legislators is known as statute law.
Common Law:
● It is generally uncodified. (no comprehensive compilation of legal rules and statutes.)
● Emerged from the power of kings in England during the middle ages
● Largely based on precedent
● Common law functions as an adversarial system, a contest between two
opposing parties before a judge who moderates.A jury of ordinary people
without legal training decides on the facts of the case. The judge then
determines the appropriate sentence based on the jury’s verdict.
● Unity of law through decisions of the courts
● But also an abundance of legislation, which consolidates, supplements or
overrides judge-made law
● USA, Canada, Australia, New Zealand and other countries of the British
Commonwealth
CIVIL LAW:
● It is codified.
● Originates from Roman law
● Systematic and exhaustive overview of the law set out in legal codes
● Code contains general rules and principles.
,● Countries with civil law systems have comprehensive, continuously updated
legal codes that specify all matters capable of being brought before a court,
the applicable procedure, and the appropriate punishment for each offense.
● Code is the starting point for all reasoning and legal developments.
● Judges are less important in shaping civil law than legislators and legal
scholars.
● Judges are not bound by their own decisions or those of the superior courts.
● Often grouped in the Romanic and the Germanic families.
CIVIL LAW COMMON LAW
LEGAL SYSTEM Legal system originating Legal system
in Europe whose most characterized by case
prevalent feature is that its law, which is law
core principles are developed by judges
codified into a referable through decisions of
system which serves as courts and similar
the primary source of law tribunals.
ROLE OF JUDGES Chief investigator; makes Makes rulings; sets
rulings, usually precedent; referee
non-binding to 3rd parties. between lawyers. Judges
In a civil law system, the decide matters of law
judge’s role is to establish and, where a jury is
the facts of the case and to absent, they also find
apply the provisions of the facts. Most judges rarely
applicable code. Though inquire extensively into
the judge often brings the matters before them,
formal charge. instead relying on
arguments presented by
the part
COUNTRIES Spain, China, Japan, United States, England,
Germany, most African Australia, Canada, India
nations, all South
American nations (except
Guyana), most of Europe
,CONSTITUTION Always Not always
PRECEDENT Only used to determine Used to rule on future or
administrative of present cases
constitutional court
matters
JURY OPINION In cases of civil law, the Juries are comprised
opinion of the jury may only of laypersons —
not have to be unanimous. never judges and, in
Laws vary by state and practice, only rarely
country. Juries are present lawyers — and are
almost exclusively in rarely employed to
criminal cases; virtually decide non-criminal
never involved in civil matters outside the
actions. Judges ensure law United States. Their
prevails over passion function is to weigh
evidence presented to
them
HISTORY The civil law tradition Common law systems
developed in continental have evolved primarily
Europe at the same time in England and its
and was applied in the former colonies,
colonies of European including all but one US
imperial powers such as jurisdiction and all but
Spain and Portugal. one Canadian
jurisdiction. For the
most part, the
English-speaking world
operates under common
law.
SOURCES OF LAW 1. Constitution 2. 1. Constitution (not in
Legislation – statutes and the UK) 2. Legislation –
subsidiary legislation 3. Statutes and subsidiary
Custom 4. International legislation 3. Judicial
Law 5. [Nota bene: It may precedent – common
be argued that judicial law and equity 4.
precedents and Custom 5. Convention
, conventions also function 6. International Law
within Continental
systems, but they are not
generally recognised
TYPE OF Inquisitorial. Judges, not Adversarial. Lawyers
ARGUMENT AND lawyers, ask questions and ask questions of
ROLE OF LAWYERS demand evidence. witnesses, demand
Lawyers present production of evidence,
arguments based on the and present cases based
evidence the court finds. on the evidence they
have gathered.
EVIDENCE TAKEN Evidence demands are Widely understood to be
within the sovereign a necessary part of the
inquisitorial function of litigants’ effective
the court — not within the pursuit or defense of a
lawyers’ role. claim. Litigants are
given wide latitude in
US jurisdictions, but
more limited outside the
US
EVOLUTION Both systems have similar Both systems have
sources of law- both have similar sources of
statutes and both have law-both have statutes
case law, they approach and both have case law,
regulation and resolve they approach regulation
issues in different ways, and resolve issues in
from different different ways, from
perspectives different perspectives
ADVERSARIAL SYSTEM:
An adversarial system is that where the court acts as a referee between the
prosecution and the defence. The whole process is a contest between two parties.
The role of the court is primarily that of an impartial referee between the
prosecution and the defense.
