common law system

By Julia Willis,2014-06-20 18:27
14 views 0
common law system

The main characteristics of common law system

    The common law system originated in medieval Englandwith the emergence of royal courts.

    In modern times, many country such as America , Australia , Canada , India all have common law system, but essentially it is an English system of law and could well be called the English law system. Contrasted with civil law system, common law system has many distinctive features. The first and most important one comes to be the doctrine of stare


    The doctrine of stare decisis means that common-law judges are obliged to adhere to

    previously decided cases or precedents. A precedent is considered to be binding on a court

    only if it was decided by that same court or by an appellate court of higher rank in the same jurisdiction , other precedents——from lower courts or from other jurisdictions ——are

    said to be merely persuasive. The doctrine Stare decisis asks for substantially

    similarity----the present case must include a fact that appears to have been necessary (material) to the earlier decision. If do not, the court may distinguish, with the result that

    the court may avoid its effect.

    To avoiding a common law judgment blind adherence to precedent and produce an unjust result in the case presented for decision, sometimes the court would overrule the

    precedents, just when the court of decision is the one that created the precedent(or is a higher court). Overruling is considered a relatively drastic action and is usually reserved for instances in which the court feels that the rule established by the earlier precedent is simply wrong.

     The other characteristic of common law system is the adversary trial system, which contrasts to the inquisitorial procedure in civil law system. Under the adversary system, the case moves forward only in response to the demands of parties. The cases are brought to the

court by the parties through their legal representatives ——lawyers. The lawyers, guided by

    the judge, control the content and flow of the evidence. In the trial, both of two sides——

    plaintiff and defendant——have an equal opportunity to investigate the case and present his or her side of it at trial through evidence and argument. However, the decision-makers——

    the judge and the jury——are neutral, passive participantshaving no rights and

    responsibility to go out and develop a case.

     In a jury case, the trial judge serves only as a sort of umpire. He or she applies the procedural rules to the lawyers and explains the substantive what facts have been established by the preponderant evidence. The jury, however, is limited to the determination of facts. In other words, the judge is the arbiter of the law while the jurors are the arbiters of the facts. Of course, if trial by jury has been waived, the trial judge himself will find the facts and apply the law to them in what is referred to as a bench trial.

    One more characteristic compared with civil law system is that the appellate courts are limited to the rectification of errors in law and do not determine facts in common law system. They may however order a retrial of the facts in cases of manifest error or fraud. While in civil law system the appellate courts determine not only the law it applies but also the facts.

    In civil law system, the only source of law is legislation. In common law system, the judges can also produce law——judge-made law. In addition, common law judges are usually

    drawn from the top ranks of barristers. Judges enjoy high status in the common law jurisdictions, which is very different from civil law system, especially in Chinese jurisdictions. Common law judges agree that experience rather than knowledge plays an important part rather than knowledge and the essential quality of the ideal judge is wisdom.

    The common law system differs greatly from the civil law system in many aspects. However, with the increasing use of the Internet for exchanging information, there is a trend of

    globalization of law. The common law systems are drawing closer to civil or civilian (statute-based) systems. There is more and more codification in common law countries such as Australia and New Zealand. The most representative example is the UCC. This new system is called hybrid code/common law system——a fusion of common law and civil law.

Report this document

For any questions or suggestions please email