Sources of Modern Law

Continental systems are known as codified legal systems. They have resulted from attempts by governments to produce a set of codes to govern every legal aspect of a citizen’s life. It made it necessary for the legislators to speculate quite comprehensive about human behaviour rather than simply looking into previous cases. In codifying their legal systems, many countries have looked to the examples of Napoleonic France, whose legislators wanted to break with previous case law, which had often produced corrupt and biased judgments.

Thus in civil law system the main branches of the law are embodied in written codes, which try to be completed and clear. There are codes of criminal law, of criminal procedure, of private law, of commercial law, and perhaps others.

The common-law systems of England, and later of the United States, began with various local customs. “Common law” is an uncertain phrase. It is used to distinguish judge-made law from law made by Parliament. It is also used to distinguish that law originating from the English system as exported to other nations and law made along the lines of Roman law, called civil or civilian law. It is essential to be careful with terminology, not just with the terms used but also with their context.

So in England and Wales the law is either made by the judges-developing principles case by case, by analogy with earlier cases, or it is made by Parliament by means of statute.

Judge-made law is called common law. In theory it is comprised of rules which already exist and simply require pronouncement by the judge. In fact, of course, judicial creativity does exist, although it varies between judges. Acts of Parliament (statutes) sometimes enable others (e.g. ministers, local authorities) to make laws on a very restricted basis. These laws appear as ‘rules’ or ‘regulation’ or ‘bylaws’ and while they are made by others they possess the delegated authority of Parliament. All this law made by or on behalf of Parliament, taken together, is called legislation.

Answer the following questions.

1) Why did governments of continental system decide to codify their legal systems?

2) What are advantages of codified legal systems?

3) Why are there various codes?

4) Why do you think at present UK judges continue to apply precedents for deciding cases?

5) What relations do statutes regulate?

Decide whether the statements are true or false.

1) In the nineteenth century the lawmakers wanted to emphasize the leading role of the state in the legislative process.

2) Legislators of the civil law intended to continue applying case law.

3) The existence of the codified system helps to specialize regulating some areas of people’s activity.

4) The main principle of using precedents is to decide a case by the same way.

5) As there is a huge number of precedents judges needn’t to create new ones.