how does common law differ from roman law?
how does common law differ from roman law?
im having trouble with it..
i still don't get it
Common laws are those determined by judges, usually based on common customs. Roman law is written law.
Common law and Roman law are two different legal systems with distinct origins, principles, and practices. Here are the main differences between the two:
1. Origins:
- Common law: Common law developed in England and spread to various countries that were once under British rule, including the United States, Canada, Australia, and India.
- Roman law: Roman law originated from ancient Rome and heavily influenced European legal systems, especially those in continental Europe.
2. Sources of Law:
- Common law: Common law is based on judicial precedents, which means that the decisions made by judges in previous court cases serve as binding legal principles for future cases.
- Roman law: Roman law relies on a comprehensive set of written codes and statutes. The most famous of these is the Corpus Juris Civilis, compiled under Emperor Justinian.
3. Legal Principles:
- Common law: Common law follows the principle of "stare decisis," which means that judges are bound to follow the precedents set in previous similar cases. This creates a more flexible and adaptable legal system that evolves over time.
- Roman law: Roman law is characterized by a more systematic and codified approach. It emphasizes individual rights and rational analysis. In Roman law, judges are given more freedom to interpret legal texts.
4. Role of Judges:
- Common law: In common law systems, judges play an active role in interpreting laws, resolving disputes, and creating legal principles through their decisions.
- Roman law: Roman law gives judges a more passive role as interpreters of the law. They are expected to apply the law as it is written, rather than creating new legal principles.
5. Legal Education:
- Common law: In common law jurisdictions, legal education is often focused on practical skills, case analysis, and understanding judicial precedents.
- Roman law: In countries influenced by Roman law, legal education places more emphasis on the study of legal codes and theory.
It's important to note that these differences exist as generalizations, and legal systems in different countries can have variations and blends of these two approaches.
To understand how common law differs from Roman law, let's first comprehend the basics of each legal tradition.
1. Common Law:
Common law developed in England and spread to many English-speaking countries, including the United States. It is characterized by its reliance on court decisions and precedents set by judges in previous cases. These precedents serve as a guide for future cases of similar nature. Key features of common law include:
a) Precedent: Court decisions in previous cases play a vital role in determining the outcome of present cases. Judges interpret laws, statutes, and previous court decisions to make these determinations.
b) Flexibility: Common law is adaptable and evolves over time through judicial interpretation and decisions. It can rely on principles of fairness, equity, and justice to make decisions.
c) Stare Decisis: Stare Decisis is a Latin term that means "to stand by things decided." This principle ensures that similar cases are decided similarly in the future, creating consistency and predictability in the application of the law.
2. Roman Law:
Roman law, also known as Civil law or Continental law, emerged during the Roman Empire and was later refined in medieval Europe. It is characterized by the emphasis on comprehensive legal codes and statutes. Key features of Roman law include:
a) Codified Law: Roman law is based on a comprehensive set of legal codes created by legislators. These codes outline the rights, obligations, and penalties for specific actions, leaving less room for judicial interpretation.
b) Legal Doctrine: Legal scholars play a significant role in interpreting and clarifying the codes. They work to develop legal doctrines that guide judges in applying the law.
c) Inquisitorial System: Roman law embraces an inquisitorial system, in which judges actively investigate the case, gather evidence, and question witnesses.
In summary, the key differences between common law and Roman law lie in their sources of law (precedents vs. codified statutes), their approach to judicial decision-making (judge-made law vs. interpretation of existing codes), and the level of judicial discretion (more flexibility in common law vs. adherence to codified law in Roman law).