Setting Background Presented Set Main Tenets Major Essay
- Length: 6 pages
- Sources: 3
- Subject: Business - Law
- Type: Essay
- Paper: #95403089
Excerpt from Essay :
setting background presented set main tenets major legal systems explain select preferred forum resolving legal disputes business, . This assignment intended demonstrate basic understanding legal system adopted United States identifying main tenets comparing contrasting main tenets major legal system.
The United States of America is currently the largest economy of the globe, and the source of most technological innovations and social advancements. Aside from these accomplishments, the U.S. is also reputable for its approach to people, given that it implements a legal system protecting the rights of the people, rather than seeking to stifle them, as it happens in other regions of the globe.
The legal system in the U.S. then is centered on the people and their well-being, and the laws and legislations are created based on the Anglo-American common law system. At this level then, the focus of the current project falls on the assessment of the legal system within the United States, in a comparative manner with the legal systems in other countries. More specifically, differences and similarities will be assessed between the Anglo-American legal system, and the Romano-Germanic Civil Law tradition. Aside from these two systems, there are also other legal systems, yet they have a decreased relevance at the moment.
The Anglo-American Common Law system emerged after the 1066 Norman Conquest and its principle is that of justice served by a judge. The Romano-Germanic Civil Law system emerged during the time of the Roman Empire, namely during the reign of Emperor Justinian. Nowadays, the Romano-Germanic law system operates in several European countries, in states in the Central and Southern America, as well as in some other countries that were historically European colonies (not British). The Anglo-American system operates throughout the world, mostly in countries that are former British colonies.
2. The Anglo-American Common Law system
The Anglo-American common law system commenced its development in the 11th century and became popular in the countries colonized by the British Empire. The underlying principle of the common law is given by the right of the king to make judgments in specific instances and have his rulings accepted and implemented by the population (Lengeling, 2008).
Today, the application of the common law system revolves around the existence of judges and judicial courts which assess situations and rule on them. The decisions these courts and judges make are binding for the parties involved, but can be overthrown by the same court or by a higher court.
Within the modern day common law, the legislations do not clearly and specifically define all aspects of human behavior; in other words, the constitutions are not all inclusive and comprehensive, increasing as such the role of the judges and that of the courts of law. This lack of constitutional inclusion creates a high degree of freedom of contract, in the meaning that the people are able to act based on their own will, as long as they do not infringe existent laws and legislations. Ultimately then, the common law system allows the populations to engage in any activity they wish, as long as this is not clearly prohibited by the law (The World Bank, 2011).
3. The Romano-Germanic Civil Law system
The civil law system, as it has been mentioned in the introductory section, has its origins in the reign of Roman Emperor Justinian, with the creation of the Corpus Juris Civilis, and it is mainly developed in the countries of continental Europe. There are two primary influences in civil law, namely the Germanic influences, and the French influences, as resulted from the Code Napoleon (1804).
"The civil law legal tradition itself can be divided further into the Romanic laws, influenced by French law, and the Germanic family of laws, dominated by German jurisprudence. In particular the Roman laws were modeled on the groundbreaking French Code Civil from 1804 (Code Napoleon), which conquered Europe's realm of ideas as the Napoleonic armies conquered the countries. Also the German Civil Code from 1896 (in force since 1900) is a consequence of the movement toward codified laws initiated by the Code Napoleon" (Lengeling, 2008).
The civil law system is highly structured, systematized and codified, based on a set of general principles, which do not always set out specific details. The more notable characteristics of the civil law system include the following:
The civil law system is normally based on a written constitution, which relies on specific codes (constitutional law, tax code and so on) and the scope of these codes is that of enshrining the principal rights and duties of the citizens
The role of judges in the civil law system is less important since they base their decisions on legislations, rather than personal opinions and assessments. In some countries even, the legal stipulations have been influenced by the academic efforts of law institutions (e.g. law universities).
The legal system is organized around the codes instated, existing therefore courts of law for constitutional matters, administrative manners or civil courts of law
The level of free contract is decreased, since many of the provisions of a contract are already regulated by laws (The World Bank, 2011).
4. Differences and similarities
A first notable difference between the two legal systems is represented by the regions in which they are applied. Particularly, both systems are applied in countries which had previously been occupied by the patrons of the respective systems. In this order of ideas, the Anglo-American common law system is popular in England, in the United States (except Louisiana), in Canada (except for Quebec) and in other countries colonized by Great Britain. The Romano-Germanic civil law system is implemented in the countries which had been colonized by France and Spain (The Free Dictionary by Farlex, 2013).
Differences are also observed in terms of the support for the systems, in the meaning that the civil law is always based on a written constitution, whereas this may not always be applicable for the common law system. Then, the judicial decisions have a stronger power in the common system than in the civil law. The writing of scholars are however more significant in civil law than in common law. Last, the freedom of contract is also different, since the civil law system is stricter and defines most of the terms of a contract, whereas the common law is more permissive (The World Bank, 2011).
A first notable similarity between the civil and the common law system is that they both integrate different sets of principles, yet these principles and stipulations are not always detailed and specific, leaving as such room for interpretations. Another similarity is revenant in the case of commercial disputes between agents in different country, which -- under both systems -- tend to be referred to international institutions for solutions. Also in line with this, it has to be stated that both the common law and the civil law systems strive to create an integrate framework to dealing with international commercial disputes, namely the International Institute for the Unification of Private Law UNIDROIT (Lengeling, 2008).
The table below summarizes the differences and similarities between the two legal systems:
Based on historical events and occupations
Applied in different global regions
Lack of details and specificity in legal provisions
Different role of judges (higher in common law than in civil law)
Both are based on legislative codes
Different degree of free contract (higher for common law and lower for civil law)
Both integrate state and legal structures, such as courts and judges
Constitution: always existent with civil law, not always existent with common law
Judicial decisions: stronger in common law and weaker in civil law
Influence of scholars: higher in civil law, decreased in common law
5. The choice for business disputes
Upon running a business, a preference would have to be mentioned regarding the choice for the civil law or the common law system. Since this choice is already made within the country in which the economic agents operate, the preference is a hypothetical one. In such a setting then, the common law system would create an important advantage for the business agent, in the meaning that it would be more permissive. The economic agent would as such rely on their own decisions to run business activities, ensuring only that they do not break the clearly stated laws.
"A common law system is generally less prescriptive than a civil law system. A government may therefore wish to enshrine protections of its citizens in specific legislation related to the infrastructure program being contemplated. For example, it may wish to prohibit the service provide from cutting off the water or electricity supply of bad payers. […] There are few provisions implied into a contract under the common law system -- it is therefore important to set out all terms governing the relationship between the parties to a contract in the contract itself" (The World Bank, 2011).
In the case of the common law system however, the business agent would be limitedly protected by the…