ПОМОГИТЕ 100Б .Common Law and Civil Law


Common Law, term used to refer to the main body of English unwritten law

that evolved from the 12th century. The name comes from the idea that English

medieval law, as administered by the courts of the realm, reflected the

“common”customs of the kingdom. This system of law prevails in Britain and in

those countries, such as Canada and the United States, that were originally

colonized by English settlers.

The common law is based on the principle of deciding cases by reference to

previous judicial decisions, rather than to written statutes drafted by legislative

bodies. Common law can be contrasted to the civil-law system, based on ancient

Roman law, found in continental Europe and elsewhere. Whereas civil-law judges

resolve disputes by referring to statutory principles arrived at in advance, common-

law judges focus more intently on the facts of the particular case to arrive at a fair

and equitable result forth litigants.

General rules or precedents are guidelines for judges deciding similar cases in

the future. Subsequent cases, however, may reveal new and different facts and

considerations, such as changing social or technological conditions. A common

law judge is then free to depart from precedent and establish a new rule of

decision, which sets a new precedent as it is accepted and used by different judges

in other cases.In this manner,common law retains dynamic for change. As the

U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. wrote in his book, The

Common Law (1881): “The life of the [common] law has not been logic; it has

been experience.”

Civil Law, term applied to a legal tradition originating in ancient Rome and to

the contemporary legal systems based on this tradition. Modern civil law

systems,which were originally developed in Western European countries,have

spread throughout the world. The term civil law also applies to all legal

proceedings that are not criminal. Under this definition laws regulating marriage,

contracts, and payment for personal injuryare examples of civil law.

The most obvious feature of acivillaw system is the presence of a written


code of law.The codes systematic and comprehensive compilation of legal rules

and principles. Although the contents of codes may vary widely from country to

country, all codes are intended as a blueprint of social regulation that attempts to

guide individuals through society from birth to death.

The civil law tradition makes a sharp distinction between private and public

law. Private law includes the rules governing civil and commercial relation ships

such as marriage, divorce ,and contractual agreements. Public law consist so

flatters that concern the government: constitution allaw,criminal law,and

administrative law. In many countries with civil law systems, two sets of courts

exist—those that hear public law cases and those that address matters of private

law.

The role of judges in civil law jurisdictions differs considerably from that of

judges in common law systems. When different facts or new considerations arise,

common law judges are free to depart from precedent and establish new law. The

civil law tradition views judges as government officials who perform essential but

uncreative functions. Civil law judges administer the codes that are written by legal

scholars and enacted by legislators. They may also consult legal treatises on the

issue in question. The civil law system assumes that there is only one correct

solution to a specific legal problem. Therefore, judges are not expected to use

judicial discretion or to apply their own interpretation to a case.

TASK 1.Answer the following questions:

1. What does the term common law refer to?

2. In what countries does common law system prevail?

3. How common law can be contrasted to the civil-laws ystem?

4. What is the main principle of the common law legal system?

5. What Is the difference in resolving disputes between common-law judges

and civil-law judges?

6. What is a precedent?

7. When a judges an depart from the precedent?




8. What are the two meanings of the term civil law?

9. In what countries is civil law system used?

10. What is the distinction between private and public law?

11. What is the difference in the role of judges in civil law jurisdictions and in

common laws systems?