Civil law systems are found in several European countries. France, Germany and Belgium, as 3 examples, all rely on this method of law. Civil law sees a a lot of stronger emphasis placed upon the legislation that has been created beforehand. There's a robust onus of responsibility on any court to confirm that they interpret legislation during a more literal sense and this, in turn, means that the legislation should be created in a very manner that should not leave any area for interpretation in the first place. In brief, all points of law would need to be presented with absolute clarity.
Below civil law systems, judges can utilize what is called the inquisitorial approach. This suggests that civil law judges play a a lot of additional investigative role, when hearing cases and they need more power to work out the approach in which they feel a case ought to go forward. With common law systems, this is not the same. Judges are bound by what is called the doctrine of precedent and this suggests that some cases that have been decided before might have a binding authority over a explicit case.
Common law systems place a robust stress on important cases that have been set before and the doctrine of precedent suggests that that a choose will be duty sure to follow the selections of the upper courts. There are times where they will even be certain by the decisions made at their own court level.
With all of this in mind, legislation is often created in a method that it can be left to the interpretation of the courts to clarify. It might solely be necessary to confirm that a statute mirrored the can of Parliament.
This is where common law becomes trickier. Civil law judges wouldn't be ready to make new laws, as they would be required to stick to the legislation that was in front of them. Not therefore, unfortunately, for common law judges. While they would attempt to swear blind that they do not build new law, this is often positively so much from the case. Judges are required to interpret legislation, that half is not in query, however, the judges usually transcend this scope and end up creating new law, that can have a binding authority on all future cases. They will try to disguise the fact that they have exceeded their level of power with enough legal jargon and general 'waffle' to sink a battleship, however any smart lawyer or legal scholar can be able to spot the fact that it has happened again.
Whilst Scotland will rely on a civil law system, it's been influenced through its nearest southern neighbor. There are occasions where previous cases can have a binding impact and, indeed, English law has incorporated some Scottish case law into its own system. Donoghue v. Stephenson [1932] AC 562 is a superb example of how a Scottish case now influences England and also the common law world in general.
Recent devolution has seen increased law making powers granted to Scotland, Wales and Northern Ireland and it would currently seem to be inevitable that the four legal systems of the United Kingdom can grow any apart. Even England and Wales, that had enjoyed very similar systems, can now see their laws recede and fewer common.
For many, this leaves you wondering what can become of the Homes of Parliament in Westminster. With such little new law being legislated, for the opposite 3 countries lately, it makes you query why MPs from Wales, Northern Ireland and Scotland are having a say over matters that really solely relate to England. Maybe it's time to scrap MPs from these alternative countries and only enable representatives from English constituencies. When a new law is being debated over a non-devolved space (e.g. defence), an invite might be extended to the representatives from the separate Scottish Parliament and Northern Irish and Welsh Assemblies to attend.
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Barbara K Howard has been writing articles online for nearly 2 years now. Not only does this author specialize in Law Legal, you can also check out his latest website about:
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