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Legal systems around the world are either based on civil law or common law. Common law, which originated in England, is based on legal precedent and judges have the power to make law. Civil law, which is based on statutory law, is followed by judges in a more limited capacity. Common law systems are used in countries with ties to England, while civil law systems are used in most European countries. In a common law system, judges create law through precedent, while in a civil law system, judges follow existing statutes. Judges in common law systems have more autonomy, but are still expected to follow precedent.
Throughout the world, there are two basic types of justice systems: civil law and common law. While there are a number of countries that have evolved to use what can best be described as hybrid legal systems, all legal systems have a basis in either common law or civil law. In short, a civil law system is based on statutory law, while a common law system is based on legal precedent. Unlike a civil law system, judges in a common law legal system actually make the law instead of just enforcing it.
The roots of common law legal systems can be traced back to the first common law system created in England during the Middle Ages. Today, most countries that once had ties to England, including the United States, Australia, New Zealand and Hong Kong, to name a few, operate under the common law. Aside from Britain, most countries in Europe operate under a version of civil law modeled on the Roman legal system created centuries ago.
In a common law system, law is created by precedent established after judges have decided actual cases. When a judge hears a case that presents a new issue, the judge makes a decision regarding the issue in the case. That decision then becomes a precedent to be followed by other courts of equal standing within the legal order. The precedent remains entitlement unless and until a higher court reverses the decision. The practice of following decisions made by other courts on similar matters is known as stare depositis.
In stark contrast to the concept of staredecis and the precedent found in a common law system, decisions in a civil law system are to be made on the basis of a corresponding statute, in theory. In a civil law system, the legislative or executive branch makes the laws and the courts are simply required to follow the laws as they are written. A judge, therefore, in a civil law system, has much less authority or autonomy than a judge in a common law system.
Judges in a common law system are, of course, expected to follow the laws of precedent; however, a judge may go against precedent if he strongly believes that existing precedent is wrong. Cases that are presented to a judge in a common law legal system that present a new problem are referred to as a “first impression problem”. When a judge is faced with a first impression issue, he will look at other similar cases and the reasoning used in those cases, then apply it to the case at hand.
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