Anglo-Saxon and continental systems of law are often opposed to each other. The intellectual basis of the first system comes from a judicial act passed by the court and gives case-law powers to previous court decisions. In continental law, the courts are much less influential.
General information
Historically, the continental system of law has been a whole group of legal ideas and systems that ultimately go back to archaic Roman law, but rely heavily on Napoleonic, Germanic, canonical, feudal and local practices, as well as doctrinal strains, such as natural law, codification and legal positivism.
Conceptually, continental law proceeds from abstractions that formulate general principles and distinguish material rules from procedural ones. Case law in it is secondary and subordinate to the law.
Features of the continental legal system
In this system there are big differences between the statute and the article of the code. The most pronounced features of continental systems are their legal codes with short legal texts that usually avoid specific incidents.
The features of the continental system of law include specific codification. The purpose of the codification is to provide all citizens with a written code of laws that apply both directly to them and in relation to courts and judges. This is the most widespread system of law in the world, operating in one form or another in approximately 150 countries. This is largely due to Roman law, possibly the most complex legal system known to date to the modern era.
The main source of law of the continental system is the code - a systematic collection of interrelated articles, sorted by subject in a certain order, which explains the basic legal principles, prohibitions, freedoms, etc.
Unlike a collection of laws or case law catalogs, the code sets out general principles that act as independent legal norms.
What distinguishes the Anglo-Saxon system of law from the continental?
In the first case, judicial precedents play the role of full-fledged legislative acts, while in continental law the courts do not play such a large role.
Unlike Anglo-Saxon law systems, continental jurisdictions traditionally do not see much value in case law. The advantages that lawyers receive in the process of the case, based on the experience of past court decisions, are preserved in the Anglo-American legal structure. Courts in the continental system of law usually decide cases using the provisions of the code on an individual basis without reference to other judicial precedents.
Vessel Features
Although a typical Supreme Court ruling in France is short and without explanation or excuse, in German Europe (Germany, Austria, Switzerland, Belgium, and the Netherlands) higher courts tend to write more detailed case histories, supplemented by numerous references to relevant codes of laws. The same can be said of 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 continental law jurisdictions rely little on court decisions, they generate a phenomenal number of registered legal opinions. However, this is usually uncontrollable, since there is no regulatory requirement that any case be registered or published in the legislative report, with the exception of the advice of state and constitutional courts. With the exception of higher courts, all publication of legal opinions is unofficial or commercial.
So, the characteristic features of the continental system of law include:
- secondary role of judicial precedents;
- developed codification;
- state and local legislative acts as the main 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 Neorim. The expression "civil law", which 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 dominates the "patrician" lands of the Roman Empire, Unlike laws governing conquered peoples (jus gentium).
Story
Continental law originates from classical Roman law (approximately 1-250 years of our era), and in particular from the Law of Justinian (VI century A.D.), and it owes its further growth and development to the Late Middle Ages. At this time, it developed under the strong influence of canon law.
The doctrines of the Justinian Code provided a sophisticated model of contracts, rules and procedures for family law, testament rules, and a strong monarchical constitutional system. Roman law developed differently in different countries. In some, it came into force through a legislative act, that is, it became a positive law, while in others it was distributed in the society by influential scholars and legal experts.
Middle Ages
Roman law developed without interruption in the Byzantine Empire until its final fall in the 15th century. However, given the numerous incursions of Western European powers into Byzantium in the late medieval period, its laws began to be widely adapted and applied in the West.
For the first time this process began in the Holy Roman Empire, partly because laws based on Roman law were considered noble and "imperial" in origin. Recycled, it became the basis for the laws of medieval Scotland, although it was severely deformed due to the influence of feudal Norman law. In England, he was taught at Oxford and Cambridge, but adapted only the right to testament and matrimony, since both of these laws were inherited from canonical and maritime law.
Consequently, none 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 an incident. However, after some time, even local legislation began to be interpreted and evaluated on its basis, since it was a common European legal tradition and, therefore, in turn influenced the main source of law. In the end, the work of civilian glossators and commentators led to the development of a single code of laws and regulations, a common legal language and a method of teaching jurisprudence. Thus, the Romano-Germanic legal family has become common to all European countries.
Codification
An important general characteristic of continental law, in addition to its ancient Roman origin, is a comprehensive codification, that is, the inclusion of numerous general rules in civil codes. The earliest codification is the Hammurabi Codex, 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 methods of punishment for crimes. Codification, typical of modern civil systems, arose only with the advent of the Justinian Code.
Germanic codes were developed by medieval lawyers during the 6th and 7th centuries to clearly outline the law applicable to German privileged classes compared to their subjects, in relation to which the rules of archaic Roman law were applied. In accordance with feudal law, several separate codes were compiled, first within the framework of the Norman empire (Très ancien coutumier, 1200-1245), and then in other places for registration of regional sources of law - customs rules, court decisions and fundamental legal principles.
These codes were ordered by the noble lords, who presided over court hearings on the affairs of the feudal courts, to know about the progress of the trials. The use of regional codes, originally drafted for influential cities, soon became commonplace in large areas. In accordance with this, some monarchs strengthened their kingdoms, trying to unify all available 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 since the time of Charles VII, who in 1454 asked his jurists to draw up an official law on the crown. Some codes of laws of that time greatly influenced the creation of the Napoleonic Code and, importantly, Magdeburg Law, which was used in northern Germany, Poland and Eastern Europe.
The concept of codification was further developed in the XVII and XVIII centuries AD as an expression of both natural law and the ideas of the Enlightenment. The political ideals of that era were expressed in terms of democracy, property protection, and the rule of law. These ideals demanded that the law of transparency, certainty, justice and universality. Thus, the combination of Roman law and local law gave way to the codification of laws, and codes became the main sources of the continental system of law.
Codification outside Europe
In the United States, the codification process began with the Field Code, adopted in New York in 1850, and then the California Codes (1872) and federal revised charters (1874). A striking example of American codification is the current United States Code, 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 main models for the local judicial and legal system. In China, the Civil Code of Germany was introduced in the following years of the Qing Dynasty, so the then Chinese authorities copied the experience of the Japanese. In addition, he 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 legislative system, which, in turn, was developed with an eye to the countries of the continental legal system.
Influence on the emergence of socialism
Some authors consider the Romano-Germanic branch as the basis for the harsh socialist legislation in force in the communist countries, which, in essence, was a continental law interspersed with Marxist-Leninist ideals. Even so, this legal system existed long before the advent of socialist law, and some East European countries returned 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 legislation, as well as French and Spanish law - this is apparently the invisible legacy of the Arab conquest of the X-XIII centuries.