Тема 4. The doctrine of precedent
Тема 1. Legal system is defined
Legal system is defined as a system of binding principles used to interpret, enforce and apply laws while prosecuting offenders in criminal cases or imposing liability in civil cases, and deciding cases in the course of court hearing. In general, legal systems around the world can be split between civil law jurisdictions, on the one hand, and systems using common law, on the other. The term civil law, referring to a legal system, should not be confused with civil law as a group of legal subjects, as distinguished from criminal law or public law. A third type of legal system — still accepted by some countries in part, or even in whole — is religious law, based on scriptures and interpretations. The specific system that a country follows is often determined by its history, its connection with countries abroad, and its adherence to international standards. The sources that jurisdictions recognize as binding are the defining features of legal systems.
Тема 2. Civil Law is usually compared with Common Law under certain provisions.
Both civil law and common law have their historical origins. However, while common law developed from custom – the customary way to decide cases, civil law emerged from Roman codified law. The founder of civil law was Emperor Justinian who created the famous Corpus Juris Civilis – codified legal principles. Similarly, the founder of common law is considered to be Henry II who introduced the system of “common law” – unified system of precedential higher court rulings common throughout the country. Each legal system uses particular sources of law. Civil law applies codes and statutes referring to previous case decisions as to secondary sources. The basic principle for civil law judges is the application of a relevant provision of the code. By contrast, the basic principle for the common law court is “stare decisis” – or “stand by the decision”. To make a decision the judges in common law courts interpret the binding rulings and even legislate (create a decision where there isn’t any appropriate precedent), while civil law judges apply the code provisions.
Тема 3. The appearance and development of Common law and civil law
The civil law originates from classical Roman law, and in particular Justinian law (6th century AD), and further developed in the late Middle Ages under the influence of canon law.
Emperor Justinian wanted to save in writing all the laws that began in ancient Rome. In ancient Rome, those laws were called the Twelve Tables. Emperor Justinian collected up all the old laws, and added new ones that gave his people even more rights. He called this body of law the Code. One of the laws in Justinian's Code stated that a person was innocent until proven guilty. Continental Europe received civil law from ancient Rome and then retained it by codification, imposed for the most part by victories of Napoleon and later on by the example and great influence of the French Civil Code of 1804. Before 1066 the English legal system involved a mass of oral customary rules, which varied according to region. After the Norman invasion there were still many different types of court apart from the royal. It was during Henry II's reign that the churchmen in his court began specializing in legal business and acting in a judicial capacity. In 1154, Henry II established common law by creating a unified court system ‘common’ to the country Judges of the realm went on regular journeys throughout the country bringing the King's justice to every citizen. Their aim was that there should be a common system of law throughout the land, hence the laws became known as the common law. The traveling judges formed a nucleus of judges with national jurisdiction who had no local roots. In time the decisions of the judges were written down. As the decisions of these courts came to be recorded and published, so the practice developed where past decisions (precedents) would be cited in argument before the courts and would be regarded as being of persuasive authority.
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Тема 4. The doctrine of precedent
What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. We know that in the course of life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned. The reason of deciding of a case can be defined as the material facts of the case plus the decision thereon. Suppose that in a certain case facts A, B and C exist, and suppose that the court finds that facts B and C are material and fact A immaterial, and then reaches conclusion X (e.g.judgment for the plaintiff, or judgment for the defendant). Then the doctrine of precedent enables us to say that in any future case in which facts B and C exist, or in which facts A and B and C exist the conclusion must be X. If in a future case A, B, C, and D exist, and the fact D is held to be material, the first case will not be a direct authority, though it may be of value as an analogy.
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