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I need some assistance with these assignment. common law vs. civil law Thank you in advance for the help!
I need some assistance with these assignment. common law vs. civil law Thank you in advance for the help! This is the same principle that guides the concept of “judicial precedent” wherein the decisions made by a judge in a previous case are binding on the decisions of future judges when facts are the same. Particularly, courts must follow decisions already made in higher or superior court, and appeal courts are bound by their own past decisions. (Gray, Lockyer and Vause, p. 26) Based on the Latin saying: “Stare decision et non quieta movere”, judicial precedent is what makes the English judicial system rigid where in other areas it is flexible.
France does not have the principle of binding precedent in the sense that “Code Civil” forbids the courts to interfere with legislation and to make rules. “It is prohibited for judges to decide by way of general provisions and rules on the cases that are brought before them.” (French Civil Code, Article 5) This provision goes a long way to explaining the special feature of the jurisprudence system in France appertaining to case law: the Highest Court ensures a certain uniformity in the interpretation of the law by the lower court judges hence making a significant contribution to the structuring of “a series of institutional procedures and adjustments furthering the adherence to previous decisions under certain conditions.” (Serverin 1999, p. 6) The High Court tends to produce tendencies or a consistency of interpretation expressed by the notion of “persisting jurisprudence” or jurisprudence constante. The practice of the courts in France, wrote Lambert and Wasserman (1929) does not become a source of the law until it is fixed by a repetition of precedents that are in agreement on a single point. (p. 14-15)
According to Gary Slapper and David Kelly (2004), the usual distinction to be made between the two systems is that common law system tends to be case centered and hence judge-centred, allowing scope for a discretionary, ad hoc, pragmatic approach to the particular problems that appear before the courts, whereas civil law system tends to be a codified body of general abstract principles which control the exercise of judicial discretion.
