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Battle of the legal systems: civil Vs. common law
Common law Civil law
Origin Common law came into existence Civil law has been compiled into a
in the Middle Ages. It was the law formal, written code. This code
that was administered in the consists of comprehensive and
King’s courts. The judges and systematic regulations. The cases
courts were thus centralized, are not sources of law in itself, but
which resulted in uniform judges interpret the code in a
(common) law for England and case.
Wales; local customs and uses
were assimilated or abandoned.
The law grew because of deciding
individual cases that were brought
before the court.
Source A precedent is a case that is a Roman law, Romanized feudal law,
s binding source of law in itself; Code Napoleon
cases are a source of law in itself.
Approa You look back: you apply the legal Jurists argue from the general
ch principles laid down in older cases principles of law laid down in the
to new cases with similar facts. codes of law. Cases provide
Until 1850 law was not an guidance but are generally not
academic studies; it was a binding.
practical craft without a
theoretical framework.
1.Introduction: There exist two main legal families (apart from religious law,
customary law and systems with both civil and common law elements): common and
civil law. We could exaggerate and say that common law is used in England (and its
former colonies) and the USA, civil law is used in the mainland of Europe (and its
former colonies).
N.B. Helen Gubby that the fnal results are the same and that the systems are in fact
very similar.
2.Application
3. Conclusion
The Dutch court system
1.Introduction: To prevent confusion when talking to a tea drinking Brit or a
cowboy-American, you could refer to the Dutch ‘Hoge Raad’ as ‘Supreme Court’; the
‘Hof’ as ‘Court of Appeal’ and the ‘Rechtbank’ as ‘District Court of X’.
,2. Application
3. Conclusion
The UK court system
1. Introduction: Because the UK court system is a common law legal system,
binding precedence is really a thing. It has a strict hierarchy (who is bound by
whose precedents). The Supreme Court (formally known as House of Lords) is the
highest court of appeal. The Court of Appeal is an appellate court that hears appeals
from lower courts. The Hight Court is a superior court. The Country Court hears
civil cases. The Crown Court hears primarily criminal cases. The Magistrates’ Court
is an inferior court and mainly deals with criminal cases. It consist of lay people; the
idea is that you should be judged by your peers, not an elite. Legal clerks advise
them. This is quite unique, sometimes there is a combination of lay people and
qualifed judges.
2. Application
Court Hierarchy
1. Supreme Court
2. Court of appeal
3. High Court
4a. County Court & 4b. Crown
Court
5. Magistrates Court
The federal court system of the USA
1.Introduction: In the USA you have on one hand the courts of the individual
states and on the other hand the federal courts. The federal jurisdiction entails
exclusively federal law (e.g. intellectual property), interstate afairs, cases on
federal land and cases with parties who live in diferent states. Thus, in the USA is
forum shopping possible: when more than one court has the competence to hear a
case and parties choose the forum that would be most benefcial for their case.
2.Application
USA Federal court system
US Supreme Court
Courts of Appeal
Trial Courts
- US District Courts (general)
- US Bankrupty Courts (bankrupty)
- US Tax Courts (tax)
, - US Court of Federal Claims (claims against the USA, e.g. monetary
claims or federal contracts)
- US Court of International Trade (international trade)
3. Conclusion
Alternative dispute resolution: there are more
ways to Rome
1.Introduction: There are more ways to Rome and alternatives to the courts. You
call this alternatives alternative dispute resolution (ADR). You have three variants:
1) Mediation: A mediator assists the parties with fnding a resolution for themselves;
2) Conciliation: A conciliator plays a more active role than a mediator and comes up
with options for the parties. His/her opinion is non-binding;
3) Arbitration: An arbitrator delivers an opinion that is biding on the parties; it is a
private legal system. It is faster and cheaper and mostly has specialists.
2. Application
3. Conclusion
Suites Vs. Zuidas Vs. Law and Order: UK
1.Introduction: There are some major diferences between the legal profession of
the Netherlands, the UK and the USA. To prevent misunderstandings regarding the
Dutch ‘notaris’, you shouldn’t use the term notary when you are talking to a Yankee.
A notary is in the USA not a legal profession, but an impartial witness by a contract.
You could use the term ‘civil notary’.
2. Application
The Netherlands UK USA
Legal Notaries: they Solicitors: can go Lawyer: a lawyer
representation verify documents, to a Magistrate gives legal advice.
probate (execute Court, can prepare Attorney-at-law:
wills), conveyance the practical steps may practice law
property and give of litigation and in court.
legal advice. can make a will or
Advocates: they do conveyance your
litigation and give property.
legal advice. Barrister:
*Note of the primarily
author: what about advocates, have a
‘juristen’? specialisation
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