Legal Systems : Legal System

1037 WordsApr 12, 20175 Pages
Legal Systems Assignment Introduction One cannot deny that although there is an infinite of legal cultures, they are all universally driven to influence societal conduct in accordance not necessarily with morality, rather with the wishes of the lawmakers. Each great legal culture namely common law and civil law express their differences from its history to its political philosophies. Each culture however, were never inflexible nor exclusive and through globalisation, it became inevitable for both to resist confrontation (Canivet, 2003). The distinction was clear when common law and civil law traditions first began in its origins. Common law was characterised as case law whilst the most prevalent feature of civil law was the fact that it…show more content…
Cases that come before the judges are also never identical; therefore, allowing room for explicit interpretation in both courts. A civil law judge would interpret the statute literally in light of its purpose and intent whilst a common law judge can interpret precedent by leaning towards it or negatively interpreting it by diminishing its legal relevance (Burrows, 2007; Hansford & Spriggs, 2008). However, a distinction can be made at the degree at which discretion is permitted. Common law judges would have more flexibility as there is a level of uncertainty in reasoning from arising instances to principles. Nevertheless, both statute and precedent can only be seen as an initial point from which principles can be reasoned. The ratio of a case is pursuant to the facts of the instances that come before and the interpretation of the general principles within its legal scope. In addition to the interpretation against the background of the law, judgments are also considered against societal values and the future direction of those values. The law, although not absolute, is analogous to moral principle and discretion is left for the judges to balance those principles against the legal rules. Unlike religious law, both common law and civil law
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