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Text 2 Civil law and common law

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One important theme is the relation between custom, writing and codes. In civil lawsystems the main branches of the law are embo­died in written codes,which try to be comprehensive and clear. There are codes of criminal law, of criminal procedure, of private law, of commercial law, and perhaps others.

The codes are meant to contain the main principles of each branch of the law. Other statutes fill in the details. In fact the supplementary laws may be as important as the codes. For example in German tort law the code imposes only liability for fault, but supplementary laws make railways etc. liable for accidents even if they were not at fault. All the same, the codes have a special prestige. They are not lightly altered.

Along with codes and supplementary statutes, scholarly writing, often by university professors, has an important place in civil law systems. Scholars explain and comment on the codes, statutes and decisions of courts. The views of the best of them are treated with respect. Court decisions are also important, but are anonymous. Individual judges remain in the background.

The same elements are to be found in common lawsystems, but in a different order of importance. Some common law systems have codes, but most do not. The statutes (apart from the constitution, if there is a written constitution) are all on a level. The decisions of judges of the higher courts are binding, and much of the law is left to the courts to develop. When a court consists of several judges, each can express a separate opinion. The opinions of individual judges have the sort of prestige that in civil law systems attaches to the opinions of scholars. Scholarly writing has some influence, and its influence is growing, but the opinion of practicing lawyers — professional opinion — is more weighty.

In civil law systems, then, reasoning from general principles(to be found mainly in the codes or in scholarly writing) is the norm. Common lawyers argue more from case to case and tend to mistrust appeals to broad principle.

Suppose someone strikes my name off a database, so that I am not paid a pension to which I am really entitled. Has he committed a wrong against me? A civil lawyer would probably begin by asking whether I had suffered damage, whether the person who struck me off was at fault and whether his fault (if he was at fault) had caused the damage. A common lawyer would ask how like this is to other cases in which liability already exists. Is it like attacking my character ('defaming' me) by saying that I have pretended to pay the pension contributions that were due but have not really done so? Is it like making a false statement that harms me, by saying that I am not entitled to a pension when I am?

Though the contrast is not as sharp as it once was, civil and common lawyers still differ in the way they reason. To understand why they do, we need to understand the importance of writing in legal development. Before writing comes to a society, its laws are customary. But customs without writing tend to be local and variable. Unless they are in the permanent form that writing gives them they seldom spread over a wide area or remain unchanged for long.

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Читайте в этой же книге: Работников | Part II | Part III | TEXT 7 JUDGES PART II | TEXT 8 JUDGES PART III | Text 10 the decline of common law | A. State Substantive | B. Federal Criminal Law | A well-regulated militia being necessary to the freedom of a free state, the right of the people to keep and bear arms shall not be abridged. | D. Juvenile Justice |
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