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Text 6. Common and continental law

Each country in the world has its own system of law. There are two main traditions of law in the world. One is based on English Common Law. The other tradition is known as Continental, or Roman law.

Common law, or case law system, differs from Continental law as it has developed gradually throughout history. It is not the result of government attempts to codify every legal relation. Customs and court rulings have been as important as statutes (government legislation). Judges do not merely apply the law, in some cases they make law, and their interpretations may become precedents for other courts.

Before William of Normandy invaded England in 106 no law was common to the whole kingdom. The Norman Kings sent travelling judges around the country and gradually a “common law” developed. Uniform application of the law throughout the country was promoted by the gradual development of the doctrine of precedent.

The doctrine of precedent is still a central feature of modern common law systems.

Even when governments make new laws – statutes, they are interpreted by the courts in order to fit particular cases, and these interpretations become new precedents.

Continental systems, codified legal systems, have resulted from attempts by governments to produce a set of codes so that the state could govern every legal aspect of a citizen’s life.

The lawmakers were also influenced by the model of the Canon law of the Roman Catholic Church, but the most important models were the codes produced in the seventh century under the direction of the Roman Emperor Justinian.

Text 5. English law

English law can be divided into Statute Law, Common Law and Case Law. Statute Law consists of all laws passed by Parliament. The majority of laws are proposed and drafted by the government in power, any member of the House of Commons or the House of Lords can also propose a law. An exception to this is that only a member of the House of Commons may introduce a financial Bill. The laws that are drafted by the government, as the laws proposed by the individual members of the House of Commons or the House of Lords, must be agreed to by Parliament before they become effective. That means that they must be passed by the elected House of Commons, approved (in most cases) by the House of Lords, and confirmed by the Sovereign.

Common Law consists of principles and rules of conduct based on the ancient customs of the country and recognized by the Courts as Law. Common Law is unwritten, and its principles can be learnt only by intensive study of past court decisions and ancient customs. The Common Law can, however, be changed or developed by statute.

But more important perhaps then either the Statute Law or even Common Law are decisions of the Courts. Just as the many ancient customs of the land make up the Common Law, the collected decisions of the Courts form English “Case of Law”. Once Parliament has passed a law, the courts must decide what the words of that law mean. The interpretation of the Courts remains till either a higher Court decides that this interpretation was wrong, or Parliament passes another law and changes it.

So once the Court decided against the government on a question of what a law means – and the Courts may decide a law as worded means something quite different from what the government intended – the government must accept the decision of the Court. They may, if the Houses agree, pass another law. But that takes a great deal of time and trouble.

Notes:

1. Statute Law – статутное право, писанный закон

2. Common Law – общее право

3. Case Law – прецедентное право