Of all the law systems around the world there are two in which are most prevalent. Common law systems and civil law systems. It is estimated that there are about eighty countries which use the common law system and about one-hundred and fifty countries that use the civil law system.
Before I compare and contrast, I think it is necessary to explain how each of these law systems were formed. – Common law is based on English law. It has been developed on a case by case basis by judges. It originates back as far as 1066 during the battle of the Hastings, when William the conqueror formerly known as the duke of Normandy became king of England. He imported with him his central administration which started the royal courts. Therefore, Norman French features in some common law legal language such as voir dire. Later his precedent Henry II Plantagenet king of England established the permanent royal courts in London. Lawyers, judges and students studied and lived in the Inns of courts.
Civil law is said to be the oldest and most widely used law system. It dates back to the roman empire. Jus civile. Also known as the Justinian code in the 6th century. It was the law applicable to roman citizens. It was rediscovered in medieval universities in bologna between 1066 – 1260. In civil law, they use codification which is the process of collecting and restating law of jurisdiction in certain areas forming a legal code which is a book of law.
From observing both common law and civil law systems I feel that I have identified at least three main differences which I am about to compare and contrast. First of all, Common law is said to be uncodified and civil law is said to be codified meaning that all the rules are written down and collected in a single book – codex, which is referred to and applied by judges in court. However, common law is described as uncodified because not all the rules and laws are written down and documented in a single book.
This leads me on to the second difference I have noticed which is in common law judicial precedent is said to be legally binding meaning cases which are alike should be treated alike for example if a case happens it 2010 and another case with the same legal issues or circumstances arises in 2011. The 2011 case should be treated similarly to the case that arose in 2010.
However, in civil law judicial precedent is not as prevalent because a judge's role is to gather the facts of the case and refer back to the book of law and find the most appropriate and applicable laws for that case. It is said that civil law judges are allowed less creativity and must follow the codex to more of an extent. So, to put it simply common law judges are most reliant on previous cases and practice whereas civil law judges are more reliant on the legislation and constitution
This brings me onto my final point which is the difference in roles that lawyers play in the different legal systems. In both systems lawyers do represent the best interests of their clients inside and outside of court nonetheless in common law legal systems lawyers are said to have more creativity and a presence inside the court allowing them to gather the facts of a case and the laws involved in that case and attempt to use both to persuade the judge on their decision in the interest of their client. The judge also has more flexibility to consider what the lawyer’s argument is and to act accordingly. On the contrary because civil law judges have less control of the decisions they make on case, it means that lawyers in civil law countries have less power to argue a case for their client and tend to serve more of a purpose of preparing legal documents and advising their clients on the proceedings of their case.
Q2 (i) What are the major sources of law in the country?
As I have learned from my research of the French legal system, France has a civil law system unlike Irelands common law system. Common law systems are ones that have evolved over the ages, and are largely based on consensus and precedent whereas Civil law systems are largely based on a Code of Law.
Frances civil law system can be clearly divided into two main categories, private law and public law.
Private law is the basic law of france ,this deals with everyday offences and petty criminal matters in a local magistrate or police court where the more severe crimes get referred to the higher courts where they will be assessed by juries. Public law is all for complaints or litigation regarding public officials . The two main sources of law I found from my research was going back to the middle ages with the Coutumes at the mid-century and then also Napoleonic law at the start of the 1800’s which really shaped French law today.
Middle ages: From the research I undertook for this project, the first source I could find of French law was dated back to the middle ages. The earliest example of French law I could find was from the Coutumes. The Coutumes were the customary laws of France. These laws were developed during the middle ages and were asserted by French kings. These were by far the most important sources of law in Frances earliest attempt to document the legal laws for France. These laws unfortunately largely oral but eventually in the mid-century they finally came to writing although it did not officially appear completed until the 16th century.
Royal ordonnances and decrees of the parliament were two more set of laws which generally applied to the whole of France too.
Napoleonic Law: The second major source of French law I discovered during my research was the Napoleonic code back at the start of the 1800’s. The basis of this legal system still stands today and is the backbone of French law.
The source of this legal system and how it was all designed goes back to Napoleon in 1804. The French legal system is laid out in a key document known as code civil or code Napoleon which laid down the rights and obligations of citizens and the laws of property, contract etc. Before Napoleon code was invented , France did not have any set of laws as it just consisted of mainly local customs. Napoleon used many ideas of the French revolution to guide him in the creation the French legal system which still stands to this day.
The fresh start began for France when Napoleon came into power in 1799. There was a commission of four jurists appointed in 1800 including Louis – joseph Faure, chaired by Cambaceres and Napoleon himself. The code was completed by 1801 after intensive scrutiny by the council state but was not published until the 21st of march in 1804.
However , there was also a number of other legal codes created around the time of napoleon to make it more detailed and specific to certain cases as it was originally fairly broad.
Penal code: The French penal code was adopted from the French revolution by the constituent assembly in 1791. This was Frances first penal code but was reincorporated in the Napoleonic penal code of 1810 which replaced this code.
Code of civil Procedure: This was adopted in 1806 when the French legal system was being overhauled.
Commercial code: Adopted in 1807, commercial code is the book III “of the different modes of acquiring property”. This is all about contracts and transactions and is once again sourced from the Napoleonic code .
In evaluation with the points I have made above , I firmly believe that the two main sources of law in France is the coutumes from the middle ages but more importantly the Napoleonic law from the 1800’s as these laws still stand today.