The Anglo-Saxon and Continental systems of law are often opposed to each other. The intellectual basis of the first system comes from the judicial act passed by the court and gives precedent authority to previous judicial decisions. In civil law, the courts are much less powerful.
General information
Historically, the continental system of law is a whole group of legal ideas and systems, ultimately dating back to archaic Roman law, but relying heavily on Napoleonic, Germanic, canonical, feudal and local practice, as well as doctrinal strains such as natural law, codification, and legal positivism.
Conceptually, civil law proceeds from abstractions that formulate general principles and distinguish substantive rules from procedural ones. Case law in it is secondary and subordinatelaw.
Features of the continental system of law
In this system, there are big differences between a statute and a code article. The most pronounced features of continental systems are their legal codes, with short legal texts that usually avoid specific cases.
Specific codification also belongs to the features of the continental system of law. The purpose of codification is to provide all citizens with a written set of laws that apply both directly to them and to courts and judges. It is the most widespread system of law in the world, operating in one form or another in about 150 countries. This is largely due to Roman law, perhaps the most complex legal system known to date to the modern era.
The main source of law in the Continental System is the code, a systematic collection of interrelated articles, ordered by subject in a certain order, which explains the basic legal principles, prohibitions, freedoms, etc.
Unlike a collection of laws or catalogs of case law, a code sets out general principles that act as independent legal norms.
What distinguishes the Anglo-Saxon system of law from the continental one?
In the first case, judicial precedents play the role of full-fledged legislative acts, while in civil law the courts do not play such a big role.
Unlike Anglo-Saxon law systems, continental jurisdictions traditionally do not see muchvalue in case law. The advantages that lawyers receive in the course of a case, based on the experience of past judgments, have been preserved in the Anglo-American legal structure. Courts in the continental law system usually decide cases using the provisions of the code on a case-by-case basis without reference to other judicial precedents.
Features of ships
Although the typical decision of the Supreme Court in France is brief and devoid of explanation or justification, in German Europe (Germany, Austria, Switzerland, Belgium and the Netherlands) the highest courts tend to write more detailed descriptions of precedents, supplemented by numerous references to the relevant law codes. The same can be said about Russian courts.
The specific work of the courts in the continental system of law is often criticized by lawyers committed to the Anglo-Saxon system, most often British and American. Although civil law jurisdictions rely little on judicial decisions, they generate a phenomenal amount of registered legal opinions. However, this is generally uncontrollable as there is no statutory requirement that any case be registered or published in the legislative record, except by the councils of state and constitutional courts. With the exception of the highest courts, all publication of legal opinions is unofficial or commercial.
So, the characteristic features of the continental system of law include:
- secondary role of case law;
- developed codification;
- State and local laws as primary sources of law;
- initially undeveloped (in comparison with Anglo-Saxon law) individual rights of citizens, a tendency to statism.
Etymology
The Romano-Germanic legal family is sometimes called neo-Roman. The expression "civil law" that is applied to it in English is a translation of the Latin term jus civile ("law of citizens"), which was a late term for the legal system that dominated the "patrician" lands of the Roman Empire, in different from the laws governing conquered peoples (jus gentium).
History
Continental law originates from classical Roman law (approximately 1-250 AD), and in particular from the Law of Justinian (VI century AD), and it owes its further growth and development to the Late Middle Ages. At this time, it developed under strong influence from canon law.
The doctrines of the Justinian Code provided a complex pattern of contracts, family law rules and procedures, rules for making wills, and a strong monarchical constitutional system. Roman law developed differently in different countries. In some it came into force by statute, i.e. became positive law, while in others it was disseminated in society by influential scientists and legal experts.
Middle Ages
Roman law developed without interruption in the Byzantine Empire untilits final fall in the 15th century. However, given the numerous intrusions of Western European powers into Byzantium in the late medieval period, its laws began to be widely adapted and applied in the West.
This process first began in the Holy Roman Empire, partly because laws based on Roman law were considered noble and "imperial" in origin. Reworked, it became the basis for the laws of medieval Scotland, although it was greatly deformed due to the influence of feudal Norman law. In England, it was taught at Oxford and Cambridge, but only the law of will and matrimony was adapted, since both of these laws were inherited from canon and maritime law.
Hence, neither of the two waves of Roman influence completely dominated Europe. Roman law was a secondary source, which was applied only when local customs and laws did not contain a recipe for solving any incident. However, after some time even local legislation began to be interpreted and judged on its basis, since it was the usual European legal tradition and therefore influenced the main source of law in turn. In the end, the work of civil glossators and commentators led to the development of a single set of laws and regulations, a common legal language and method of teaching jurisprudence. Thus, the Romano-Germanic legal family became common to all European countries.
Codification
Important commoncharacteristic of continental law, in addition to its ancient Roman origin, is a comprehensive codification, i.e., the inclusion of numerous general norms in civil codes. The earliest codification is the Code of Hammurabi, written in ancient Babylon in the 18th century BC. However, this and many subsequent codes were mainly lists of civil and criminal offenses, as well as ways of punishing crimes. The codification typical of modern civil systems only came into being with the advent of the Justinian Codex.
The Germanic codes were developed by medieval jurists during the 6th and 7th centuries to clearly delineate the law applicable to the Germanic privileged classes versus their subjects, who were subject to archaic Roman law. Several separate codes were drawn up under feudal law, first within the Norman Empire (Très ancien coutumier, 1200-1245) and then elsewhere to record regional sources of law - customs regulations, judicial decisions and fundamental legal principles.
These codes were ordered by noble lords who presided over the meetings of the courts of feudal courts in order to know about the progress of the trials. The use of regional codes, originally drawn up for influential cities, soon became commonplace in large areas. In accordance with this, some monarchs have strengthened their kingdoms, trying to unify all existing codes that would serve as law for all their lands.without exception. In France, this process of centralization of the continental system of law began with the time of Charles VII, who in 1454 asked his jurists to draw up an official law for the Crown. Some of the laws of that time greatly influenced the creation of the Napoleonic Code and, not least, the Magdeburg Law, which was used in northern Germany, Poland and the countries of Eastern Europe.
The concept of codification was further developed in the 17th and 18th centuries AD as an expression of both natural law and Enlightenment ideas. The political ideals of that era were expressed in terms of democracy, the protection of property, and the rule of law. These ideals demanded transparency, certainty, justice, and universality from the law. Thus, the combination of Roman law and local law gave way to the codification of laws, and the codes became the main sources of the continental system of law.
Codification outside Europe
In the United States, the process of codification began with the New York Code of the Field in 1850, followed by the California Codes (1872) and the Federal Revised Statutes (1874). A striking example of American codification is the Code of the United States, which is still in force today, adopted not so long ago by the standards of the history of jurisprudence - in 1926.
In Japan at the beginning of the Meiji era, European legal systems, especially the civil law of Germany and France, were the mainmodels for the local judicial and legal system. In China, the German Civil Code was introduced in the later years of the Qing Dynasty, thus the then Chinese authorities copied the experience of the Japanese. In addition, it also formed the basis of the law of the Republic of China after the Xinhai Revolution of 1911 and still remains in force in Taiwan. Moreover, Korea, Taiwan and Manchuria, as former Japanese colonies, were strongly influenced by its legal system, which, in turn, was developed with an eye to the countries of the continental system of law.
Influence on the birth of socialism
Some authors consider the Romano-Germanic branch as the basis for the rigid socialist legislation that was in force in the communist countries, which, in essence, was continental law interspersed with Marxist-Leninist ideals. Even so, this legal system existed long before the advent of socialist law, and some Eastern European countries reverted to pre-socialist civil law after the fall of socialism, while others continued to use socialist legal systems.
Connection with the Islamic world
Apparently, some civil law mechanisms were borrowed from medieval Islamic Sharia and fiqh. For example, Islamic hawala (hundi) underlies the original Italian law, as well as French and Spanish law - this is apparently an invisible legacy of the era of Arab conquests. X-XIII centuries.
