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The Origin of Civil Law

Info: 2176 words (9 pages) Essay
Published: 8th Aug 2019

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Jurisdiction / Tag(s): UK LawEU Law

As per The Law Dictionary define that civil law as the body of laws of  a state or nation dealing with the rights of private citizens.  As well-known civil law or also known as civilian law is a legal system which is influenced by the Roman law and in especially the Corpus Juris Civilis of Emperor Justinian and the developments during the middle ages. Corpus Juris Civilis which is known as a basic or fundamental work in jurisprudence issued from the 529 to 534 by order of Justinian I in the Byzantine Emperor. Then, the Justinian will gave orders which is collect the legal materials of various kinds into several codes. After that, it will became the fundamental of the act of making strong again of Roman law in the middle ages. Thus, the Roman law which is to becaming strong again in turn, became the foundation of law in all civil jurisdictions.  However, every country will received different Roman law.

When in the Byzantine Empire, Roman law is used until its final fallen in the 15thcentury  but in that time this law was applied to multiple incursions and the occupations in the middle ages. In the same time the law is widely applied in the Western Europe. Roman law also was considered as imperial law and actually the law was firstly used in the Holy Roman Empire. Then, it was spread in Europe. The main reason is because many of its student were the only trained lawyers. A part from that, in Scotland the roman law was used as basic law of the Scots law eventhough it was partly compete by the feudal Common law. On the other hand, the Roman law was taught academically in other country such as in England which is at Oxford and Cambridge.

Unfortunately,  theres were none of the two spreads of Roman law was completely powerful in Europe. It was only used as a secondary source whic is applied if the laws and the local customs were found lack on certain things but the main source of law was influenced  in turn local law came to be interpreted and evaluated primarily on the basic of Roman law after a time.

Besides that, in the Roman law the most important characteristic is to make the codification longer of the adopted Roman law which is included into the civil codes.  This codification system has its origins in the Code of Hammurabi which is written in ancient Babylon during the 18th century BC. Then, the concept was developed during 17th and 18thcenturies AD which is as an expression of both Natural law. In that era,  political ideal was expressed in the concepts of democracy, protection of property and the rule of law. Then, the ideal required creation of certainty of law which is through its uniformity and the recording of law. Therefore, the mix of roman law and customary law, and the road opened for law codifications which together with others mentioned political ideal.

Not only that, together with others or contributed to codification was the notion of notion state required the recording of law that would be used to the state is other reason. In the same time, there also response to the aim of law codification which is proponents of codification to think of it as conducive to certainty, unity and systematic recording of law. Thus, the codification of European private laws moved forward in the end and the codifications were completed by France (1804), and Austria ( 1811). The Emperor Napolean I already conquered the French codes followed by adopted modifications in the Netherlands (1838), Romania (1865) and Germany (1900).

In the late of 19th century Germany power was arose and its legal system was also well organized and after many of Asians nations developing, were cause the german Civil code became the fundamental for legal system in South Korea and Japan. On the other hand, German civil code was introduced in China when in the Qing Dynasty which is became the basic of the law of the Republic of China that remains in Taiwan.

The Origins of Common Law

Based on The Law Dictionary, common law can be define as the body or a system of law that originated and develop in England by judges through court decision based on custom & precedents,  unwritten in statute and usages rather than on codified written laws.  Actually, the originally term of common law gets from after the Norman Conquest. Then, the term “common law” was law that to become known as “common” throughout the realm as the king’s judges which is to make law to join the separate parts together to make  a unit common law throughout England. Besides that, in England during the 12th and 13th centuries, the doctrine of precedent was develop under the inquisitorial system. It is used as the collective judicial decisions which is based on tradition, precedents and custom.

A part from that, the form of reasoning which is used in common law is well known as casuistry or case- based reasoning.  Common law which is used in civil cases was to intent new way of doing which means of compensating someone for wrongly acts or known as torts. Adversarial system were the type that used as procedure practice in the common law courts which is also development of common law.

Besides that, the justice was administered mainly by the county courts which charge to be by the diocesan bishop and the sheriff that used both ecclesiastical and civil jjurisdiction. This happen before the Norman conquest in 1066. In the same time, the jury start their trial in these courts.  When it comes to Henry during his rule one of many achievements was he connected with the constitution common law by creating a unified system of law “common “ to the country after Henry II became the first Plantagenet king in 1154.

Then, he send judges from his central court to hear the various disputes throughout country. After that, the judges resolved disputes according to what were they interpreted  the customs to be. Next, all the judges returned to London disscuss all their cases and decisions they have made with the other judges and the decision will be recorded and filed. On the other hand,  a rule known as stare decisis or well known as precedent develop. This rule is where the judge can be bound to follow the decision of an earlier judge which mean he required to used the earlier judge’s interpretation of the law and used the same principles but only if  the two cases have the similar facts to one another.

British common law was adopted and used as the basic colonised legal system to gained their independence.  Usually, newly independent colonised used common law precedents as of the date independence as the default law in many cases. It is actually importances but not clear rejected by the newly freed colony’s founding documents or government such as followed by the American revolution  in 1776, each of the newly independent states will take one of the first legislative. Its used to adopt a “reception statute” which gave legal effect to the existing body of British common law.

The Development of Common Law

In the early of common law was inflexible which is the case that not fallen under ther purview of a particular writ and had set of procedural rules would be not adjudicate. Besides that,  there was a sharp division between common law or also known as  legal jurisprudence and equity or equitable jurisprudence. the state of New York enacted a code of civil procedure which is drafted by David Dudley Field that merged law and equity into one jurisdiction in the year 1848.

Thus, actions at law and suits in equity were to be administered in the same courts and under the same procedure and the code reform which adopted  by most states of the United States, by the federal government, and by Great Britain in the Judicature Act of 1873. As well known that the common law constitutes as the fundamental of the legal systems of many countries such as prevails in England, India, Canada, United States, Malaysia and other countries which that colonized by England.

A part from that, in the common law system,  an adversarial exchange of arguments and evidence which is were settled the disputes. The both parties will present their cases before a neutral fact finder, either a judge or a jury. Then, they will evaluates the evidence and applies the law to facts in the favour of one parties. After that, the party may appeal the decision to a high court following the decision that have made.

Besides that, all citizens include the highest ranking officials of the government are used to yhe same set of laws and the government power is limited by the laws under the common law. Then the judiciary may review legislation but only determine whether it conforms to constitutional  requirements.

International Countries That Applies Common Law

The longest written constitution for a country would be the Constitution of India. It contain 444 articles then, 12 schedules, numerous amendments and 117369 words. Consequences of the long period of british colonial influenced which is during the period of the British Raj cause the Indian Law is widely based on English common law.

In 1857 after the failed of India rebellion against the British, British Parliament took over India  from the British East India Company. Then, British India came under the rule of the crown. The Government of India Act of 1858 was pass by the British Parliament  to this effect which is set up the structure of British government in India. It was established in the office of the Secretary of State for India in England through the whom Parliament would used its rule along with a Council of India to aid him. Not only that, the office of the Government General of India also was established with an Executive Council in India which that consisted of high officials of the British Government.

When drafting the Indian Constitution , the laws from Ireland, United States, Britain And France were synthesized which to get a refind set of Indian laws as currently stands. A part from that, Indian laws also adhere to the United Nations which is guidelines on human rights law and the environmental law. Not only that, international trades laws for example on intellectual property also enforced in India.

Then, the Indian family law is complicated with each religion applies to its ow specific laws. Registering marriages and divorces is not actually compulsory in many states. In the same time, there are separately laws governing Hindus, Muslims, Christians, Sikhs and followers of other religions but theres exception to this rule is in the state of goa where the Portuguese uniform civil code is in place which that all religions have a common law in marriages, divorces and adoption.

Next, ancient India was represented a distinct tradition of law, and had an historically independent school of legal theory and practice. The Arthashastra, dating from 400 BC and the Manusmriti, from 100 AD, which were influenced by the treatises in India. In the early in this period, which finally culminated in the creation of the Gupta Empire, relations with ancient Greece and Rome were not infrequent. The appearance of similar fundamental institutions of international law in various parts of the world. After India became part of the British Empire, there was a break in tradition, and Hindu and Islamic law were according  to the common law. As a result, the present judicial system of the country derives largely from the British system and has little correlation to the institutions of the pre-British era.On September 2007 there are 1160 laws.

Local Influenced on Common Law

Malaysia is mainly based on the common law legal system. The supreme law of the Constitution of Malaysia was sets out the legal framework and rights of Malaysian citizens. Then, the federal laws enacted by the Parliament of Malaysia which is applies throughout the country. The constitution of Malaysia also provides for a unique dual justice system which the secular laws criminal and civil and sharia laws.

Application of case law in Malaysia can be applied in law of contract, law of tort, criminal law, and land law. For contact law the case law can be referred to the case Carlill v Carbolic SmokeBall Co (1893)  while the other case is Partridge v Crittenden [1968].Then, for the tort law the case law can be referred to the case Donoghue v Stevenson  [1932] and other case is  Caparo v Dickman (1990).  Not only that, for criminal law the case law can be refered to the case R v Blaue [1975].

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