Common Law Versus Civil Law Systems Essay

The two principal legal systems in the world today are those of civil law and common law. Continental Europe, Latin America, most of Africa and many Central European and Asian nations are part of the civil law system; the United States, along with England and other countries once part of the British Empire, belong to the common law system. The civil law system has its roots in ancient Roman law, updated in the 6th century A.D. by the Emperor Justinian and adapted in later times by French and German jurists. The common law system began developing in England almost a millennium ago. By the time England’s Parliament was established, its royal judges had already begun basing their decisions on law â€Å"common† to the realm. A body of decisions was accumulating. Able lawyers assisted the process. On the European continent, Justinian’s resurrected law-books and the legal system of the Catholic Church played critical roles in harmonizing a thousand local laws. England, in the midst of constructing a flexible legal system of its own, was less influenced by these sources. It never embraced the sentiment of the French Revolution that the power of judges should be curbed, that they should be strictly limited to applying the law such as the legislature might declare. Thus, British colonists in America were steeped in this tradition. Indeed, among the grievances enumerated in the American Declaration of Independence were that the English king had deprived the colonists of the rights of Englishmen, that he had made colonial judges â€Å"dependent on his will alone for the tenure of their offices† and that he had denied the people â€Å"the benefits of Trial by Jury.† After the American Revolution, English common law was enthusiastically embraced by the newly independent American states. In the more than 200 years since that time, the common law in America has seen many changes — economic, political and social — and has become a system distinctive both in its techniques and its style of adjudication. It is often said that the com mon law system consists of unwritten â€Å"judge-made† law while the civil law system is composed of written codes. For the most part, law in the United States today is â€Å"made† by the legislative branch. To some extent, however, the judge-made law analogy is true. Judicial independence is a hallmark of the American legal system. As a co-equal branch of government, the judiciary — to a remarkable degree — operates free of control by the executive and legislative branches, deciding cases impartially, uninfluenced by popular opinion. The American people respect their courts and judges, even if they sometimes criticize them. In this contrast of common v. civil law, U.S. District Court Judge Peter Messitte (Maryland), considers some basic aspects of both systems and explains how the American common law system compares with that of civil law.Historically, much law in the American common law system has been created by judicial decisions, especially in such important areas as the law of property, contracts and torts — what in civil law countries would be known as â€Å"private delicts.† Civil law countries, in contrast, have adopted comprehensive civil codes covering such topics as persons, things, obligations and inheritan ce, as well as penal codes, codes of procedure and codes covering such matters as commercial law. But it would be incorrect to say that common law is unwritten law. The judicial decisions that have interpreted the law have, in fact, been written and have always been accessible. From the earliest times — Magna Carta is a good example — there has been â€Å"legislation,† what in civil law systems would be called â€Å"enacted law.† In the United States, this includes constitutions (both federal and state) as well as enactments by Congress and state legislatures. In addition, at both the federal and state levels, much law has in fact been codified. At the federal level, for example, there is an internal revenue code. State legislatures have adopted uniform codes in such areas as penal and commercial law. There are also uniform rules of civil and criminal procedure which, although typically adopted by the highest courts of the federal and state systems, are ultimately ratified by the legislatures. Still, it must be noted that many statutes and rules simply codify the results reached by common or â€Å"case† law. Judicial decisions interpreting constitutions and legislative enactments also become sources of the law themselves, so in the end the basic perception that the American system is one of judge-made law remains valid. At the same time, not all law in civil law countries is codified in the sense that it is organized into a comprehensive organic, whole statement of the law on a given subject. Sometimes individual statutes are enacted to deal with specific issues without being codified. These simply exist alongside the more comprehensive civil or penal codes of the system. And while decisions of the higher courts   in a civil law jurisdiction may not have the binding force of law in succeeding cases (as they do in a common law system), the fact is that in many civil law countries lower courts tend to follow the decisions of higher courts in the system because of their persuasive argumentation. Nevertheless, a judge in the civil law system is not legally bound by the previous decision of a higher court in an identical or similar case and is quite free to ignore the decision altogether. The Concept of Precedent In the United States, judicial decisions do have the force of law and must be respected by the public, by lawyers and of course, by the courts themselves. This is what is signified by the â€Å"concept of precedent,† as expressed in the Latin phrase stare decisis — â€Å"let it [the decision] stand.† The decisions of a higher court in the same jurisdiction as a lower court must be respected in the same or similar cases decided by the lower court. This tradition, inherited by the United States from England, is based on several policy considerations. These include predictability of results, the desire to treat equally everyone who faces the same or similar legal problems, the advantages to be gained when an issue is decided that affects all subsequent cases and respect for the accumulated wisdom of lawyers and judges in the past. But it is also understood that primary responsibility for making law belongs to the legislative authority; judges are expected to interpr et the law, at most filling in gaps when constitutions or statutes are ambiguous or silent. Thus, there are important limiting features to the concept of precedent. First and foremost, a court decision will only bind a lower court if the court rendering the decision is higher in the same line of authority. For example, a decision of the U.S. Supreme Court on a matter of constitutional or ordinary federal law will bind all U.S. courts everywhere because all courts are lower and in the same line of authority as the Supreme Court in such matters. But decisions of one of the several U.S. Courts of Appeals — the intermediate federal appeals courts — will only bind federal trial courts within their respective regions. Decisions of a state supreme court on the meaning of a state law where that court sits will be binding everywhere, so long as the state court’s decisions do not conflict with constitutional or federal statutory law. American judges tend to be very cautious in their decision-making. As a rule, they only entertain actual cases or controversies brought by litigants whose interests are in some way directly affected. In addition, judges usually decide cases on the narrowest possible grounds, avoiding, for example, constitutional issues when cases may be disposed of on non- constitutional grounds. Then, too, the â€Å"law† that judges state is only so much of their decision as is absolutely necessary to decide the case. Any other pronouncement on the law is unofficial. Another important limiting feature of the concept of precedent is that the later case must be the same or closely related to the previous one. Unless the facts are identical or substantially similar, the later court will be able to distinguish the earlier case and not be bound by it. The highest court of a jurisdiction, e.g., the U.S. Supreme Court for the United States or a state supreme court within its own state, can overrule a precedent even where the facts of the later case are identical or substantially similar to the earlier case. In 1954, for example, in the famous school integration of Brown v. Board of Education, the U.S. Supreme Court overruled an analogous decision it had rendered in 1896. But such direct over-ruling is not common. What is more likely is that the high court, by distinguishing later cases over time, will move away from an earlier precedent which has become undesirable. But for the most part, the long standi ng precedents of the high courts remain. An Organized Law Where does one go to find the law in America? It might be supposed that with both enacted law and judicial decisions comprising the law, the search would be difficult. But the task in fact is relatively easy. Even though much American law is not codified, it still has been systematized and organized by subject matter. Legal encyclopedias and treatises written by learned professors and practitioners set out the law in logical sequence, typically providing historical perspectives as well. These books of authority contain references to the principles and specific rules of law in a given branch of law, as well as citations to relevant statutes and judicial decisions. Accessing statutes in â€Å"codebooks† and cases in bound volumes called court reports, and nowadays accessing both by computer, is a relatively straightforward undertaking. But it also bears noting that in the common law system, treatise writers do not have the same importance that they do in the civil law system. In civil law countries, such authorities are sometimesconsidered sources of law, looked to for the development of the doctrine relative to a given subject matter. Their statements are given considerable weight by civil law judges. In the United States, in contrast, doctrine developed by treatise writers lacks binding force, although it may be cited for its persuasive effect. Common Law v. Civil Law Apart from these features, there are a number of institutions associated with the common law system not usually found in civil law systems. Principal among these is the jury which, at the option of the litigants, functions in both civil and criminal cases. The jury is a group of citizens, traditionally 12 in number, summoned at random to determine the facts in a lawsuit. When a trial by jury is held, the judge will instruct the jury on the law, but it remains for the jury to decide the facts. This means that ordinary citizens will decide which party will prevail in a civil case, and whether, in a criminal case, the accused is guilty or innocent of the charge against him or her. The institution of the jury has had an important shaping effect on the common law. Because jurors are brought in on a temporary basis to resolve factual issues, common law trials are usually concentrated events, sometimes only a matter of days (although occasionally possibly weeks or months in duration). Empha sis is on the oral testimony of witnesses, although documents also are presented as evidence. Lawyers have responsibility for preparing the case; the trial judge performs no investigation of the case prior to trial. Lawyers, acting as adversaries, take the lead in questioning the witnesses at trial, while the judge acts essentially as a referee. Testimony is recorded verbatim by a court reporter or electronically. The trial court, which is the â€Å"court of first instance† (i.e., where the case is first heard) in the American system, is where the factual record of the case is made. Generally speaking, appeals courts confine their review of the lower court record to errors of law, not of fact. No new evidence is received on appeal. All this stands in marked contrast to what is usually found in civil law systems, where jury trials are for the most part unknown. In a given case, instead of a single continuous trial, a series of court hearings may be held over an extended period. Documents play a more important role than witness testimony. The judge actively investigates the case and also conducts the questioning of the witnesses. Instead of a verbatim record of the proceedings, the judge’s notes and findings of fact comprise the record. Appeals may be taken both on the facts and the law, and the appeals court can and, sometimes does open the record to receive new evidence. Despite their differences, both the common and civil law systems have as their goal the just, speedy and inexpensive determination of disputes. U.S. courts have become particularly sensitive in recent years for the need to continuously reappraise their processes in order to improve the quality of justice. As a consequence of these efforts, there are many other aspects of court activity in the U.S. These range from alternate dispute resolution mechanisms (including arbitration and mediation) to such procedural devices as default and summary judgment, used by judges to decide cases at an early stage without having to proceed to a formal trial.

Portfolio of documents and exercises 04101 Essay

Portfolio of documents and exercises 04101 - Essay Example Include organising, leading or group activities. Those requiring initiative, creativity or giving intellectual development are also of interest. The following questions are designed to encourage you to provide specific abilities. Your examples can be taken from your education, work experience, placements or spare-time or other voluntary activities but do not write solely about course-work. Describe a challenging project, activity or event which you have planned and taken through to a conclusion. Include your objective, what you did, any changes you made to your plan and state how you measured your success. ï‚ · To analyze the extent of change in customer satisfaction due to either a change in customer expectations over Mobile Number Portability services before and after availing it or a change in the services provided by the mobile network operators to its customers which further lead them to avail MNP. ï‚ · Thus to suggest strategic and tactical actions for slowing down the rate of customer loss, increase customer satisfaction and attracting customers who are unhappy with their existing service contributor. Describe how you achieved a goal through influencing the actions or opinions of others (perhaps in a team context). What were the circumstances? What did you do to make a difference? How do you know the result was satisfactory? During the second year of my studies, I had a group assignment which required all the group members to prepare a presentation on one of our course modules. I myself chose to lead the team precisely because I could understand that other individuals in the team were reluctant to lead the way. The first major circumstance that came in front of me was that my team was formed of people belonging from different culture. This was mainly due to the fact that the five individuals within the group came from different countries. Therefore, it was important for me to understand the acceptance, tolerance and

Psychosocial and Ethical Issues Personal Statement

Psychosocial and Ethical Issues - Personal Statement Example In this assignment, the psychosocial and ethical issues involved in the disease and in the possible management of such patients will be analysed through a reflective account. Case: This is a little girl of age 9, suffering from a leukaemia. She is attending this hospital for followup chemotherapy. Her mother accompanies her every time, and she seems to be very supportive to her daughter throughout these treatment cycles. Ethical Issues: Every patients and care involve some ethical issues. Pediatric patients such as this go through grueling rituals of management in the clinical setting. Quite often, these involve multidisciplinary workup and management. In the clinical situation, these are data of various categories and their interpretations. Changes in the clinical conditions and other parameters are discussed in order to design a therapy that suits best to the clinical conditions of these children. These situations are often grappled with ethical issues which tend to neglect the patient and the physician perspectives, even though they may be ethically sound. This is a chronic condition, and the mechanism of coping with such a severe disease for a little child like her is always a problem, and it is more so for the family or the mother. The patient has her own rights, but the fact that the patient is a dependent member of the family, and therefore, many of her decisions will be made by the physician s and the family, adjusting to her growing competence and maturity. It is very evident that the medical professional will have to act with fewer presumed limits on their commitment of care. The principles of beneficence may counteract with the principle of autonomy in case of this pediatric patient. Obviously, this would vary from those in case of adult patients. It is to be noted that cancer is no longer that deadly. With tremendous improvement in medications and technologies, the outcome is no that poor. All these have led to changes in the ways the physicians communicate with their patients. Truth telling perhaps is the most important ethical responsibility of a healthcare professional. Although truth is dynamic in nature, truth about a patient's condition is a combination of both subjective and objective factors. It also involves psychosocial aspects as to how it is interpreted by the patient and the physician. This matter is further complicated by the fact that the patient is a child. However, ethically, the healthcare professionals are bound to lead to honest transmission of what is accepted medical knowledge at a given time. This must accept the fact that the patient is not passive, rather an active participant in the decision making process, embodying autonomy. Since the child is just 9 years old with cancer, there is a high chance th at there would be considerable extent of paternalism. However, due to superior medical knowledge, the doctor may lead to medical benefit out of this, but that may not ensure patient benefit. However, the patient's mother who has been supportive to her may also do the same thing, and despite that, the doctor will have to depend on her. It is to be remembered that the patient, despite being a child, has her own value systems, cultural beliefs, and religious beliefs. In the changed scenario of the present time, a shared decision making is the rule of the hour. Moreover, the patient would want to assert autonomous control

Environmental Policy Essay Example | Topics and Well Written Essays - 2000 words

Environmental Policy - Essay Example information regarding the occurring environmental degradation [Pellegrini &Gerlagh, 2006 page3] witnessed by the soviet union, Asia, Africa and even the Latin America. With democracy, was the ability to protest against the loose grip of the authorities on the optimum use of the resources available. Thus, the democratic setup helped the cause of raising voice high enough to reach the ears of the undertakers. By exploring the link between democracy and environmental policy we can find the nature of effect that each has on other, as for instance, countries with a democratic setup have a political commitment to the people of healthy environment. And democracy is a significant positive determinant of environment protection. The UK initiatives out of region have been in the developing countries, of which the present work will limit it to India. As India is arriving in the developed country arena with the zest never seen before, the sustainability model will be largely dependent on the shoulders of the youth of the nation. The UK s sustainable development projects in India aim at Natural Resource Management, Climate change policy, mainstream sustainable development and production aiming at reduced emissions[UK - SUSTAINABLE DEVELOPMENT PROJECTS IN INDIA, 2006]. The UK Strategy for Sustainable Development, which uses that definition of sustainable development, has four objectives: - social progress which recognizes the needs of everyone - effective protection of the environment - prudent use of natural resources - maintenance of high and stable levels of economic growth and employment.[MAPPING COMMON GROUNDS, 2001] UKs latest initiative on the matter of democratization in environment policy making is the... World is changing, and how?, so during this time when the scientists are busy coming out with more statistical â€Å"deadlines† of natural resources remaining on earth and people are busy getting one on one with the â€Å"global warming† glossary of terms, fewer have started the leap toward new ways of living that are less daunting on our planet. People are reminded of a serious â€Å"shift of origin† like condition of the planet when researchers declare that the rising temperatures due to global warming will harm the wine industry in the regions of California or the decreasing ICE CAP for polar bear survival or the melting glaciers of the Himalayas close to India. But still now in times of severe hunger and poverty stricken countries of the world, where survival comes before living, fewer will be courageous to take report of the now termed â€Å"planet in peril†. On the positive side, there is some relief in watching the efforts of international level org anizations and NGOs come to light the way towards a â€Å"prolonged† stay here, on earth. Greenpeace, Care, UN and among others are the forth runners in this task. Scientific knowledge and policy go together hand in hand. Scientists contribute to the framing of issues and the agenda for climate change by defining what evidence they can produce and by making claims about its significance for policy-makers. The future for the environmental policy making through democratization is clearer and it is going to be a key issue for the coming organizational setups. The industrial revolution of the 1900s has had initially profound effect on the global environment which are now showing up. There is a need for table turning policies and stringent actions.

Answer these two question Assignment Example | Topics and Well Written Essays - 250 words

Answer these two question - Assignment Example When contrasted with expenses such as business space rent, operating an online shop can be more affordable. This assists small business vendors having no sufficient capital to rent prime space or hire employees to set up as well as operate business (Akhter,2009). Reach: having an online store enables one to do business worldwide provided s/he can communicate via email, as opposed to traditional commerce where one only deals with people who come to the physical store. This also facilitates other ways of marketing that can only be done online, which increases sales and customers (Akhter,2009). Return rates: In a conventional shop, the client purchases goods in person, in the process getting the opportunity to check the items, touch and try them effectively reducing the complaints and returned items. On the other hand, online shopping is characterized by high returns, because many clients order and try goods at home, they will return them if they do not meet their expectations (Akhter,2009). Over the years, the phrase â€Å"electronic commerce† has been changing. Initially,† electronic commerce† referred to the electronic facilitation of commercial transactions by use of technology such as Electronic Data Interchange (EDI) that was introduced in 1970s.The EDI facilitated electronic sending of commercial documents such as invoices and purchase orders. The second major development involved the activities more accurately referred to as â€Å"Web commerce†-which is the buying of services and goods over the World Wide Web through secure servers such as HTTPS which is a unique server protocol capable of encrypting confidential ordering data to protect customers (Akhter,2009). Whereas the Internet, in 1994, started to progress in popularity amongst the general public, it took around 4 years to come up with security protocols such as DSL and HTTP which facilitated quick access in

Asignment 5 Essay Example | Topics and Well Written Essays - 250 words

Asignment 5 - Essay Example Formatting the proposal letter would also include including final remarks and salutations at the end. For instance, I would conclude the letter by writing ‘yours in service’ followed by restating my position within Artifice and signature. In addition, I would conclude the letter by restating the topic and emphasizing on ethical advantages of joining corporate responsibility officer association. The aforementioned essentials are imperious in maintaining professionalism and avoidance of questions regarding potential mistakes (Anderson 625). I would also ensure that I always restate theme of the proposal letter throughout the essay. Repetition of fundamental points in a proposal letter is essential in reminding readers and audience of its intent. In addition, restating subject of the letter would help sustain patience and provoke readers’ meditation over topic in question. It would also be imperious to employ emotional and present tense language besides using general pronouns. Emotionally persuasive language would entail reminding listeners and readers that they remain fundamental decision makers to whether Artifice would join corporate responsibility officer association. For instance, I would start the initial sentence by writing that ‘I am writing to propose that we as loyal and committed members of Artifice Incorporation join CROA’. It would also be essential to correct grammatical mistakes within the letter for example change Artifice Incorporated to Artifice

Critical Analysis - Article will be provided Lab Report

Critical Analysis - Article will be provided - Lab Report Example While space has been discussed in mainstream media outlets in programs like â€Å"Star Trek†, it can most definitely be said that the only real way to understand space in its true form would be to experience it for one’s self by experiencing the wonder of traveling to it. As Dr. Klein writes, â€Å"In 1998, at the 44th Annual Meeting of the Florida Philosophical Association, Dr. Roy Weatherford gave his Presidential Address, on the moral imperative of space travel. Weatherford argued that human lives are intrinsically valuable,† (Klein p.8). Dr. Weatherford himself goes on to make claims that most would call very controversial, even for his day. While some have argued for the need of population control through means of birth control and such, Dr. Weatherford on the other hand made claims to the extent that not only is it wrong in his view to champion birth control, but that the human race should strive for maximum reproduction. This sort of statement resembles the mindset of human dominance even above all else. One could argue that each found their stance to be valid and held their own individual ideas in high regard. It is very believable that space exploration would be of such great importance as it came to the advancement of the learning of mankind. As for Dr. Weatherford’s argument against the use of birth control, while this is something that has been argued before, in the end appears to have more of a religious undertone to it rather than the potential scientific discoveries and benefits of the initial argu ment made. Further examination of his argument in this case leads to the conclusion that not only is Dr. Weatherford arguing for the mass production of the human race, but that there is encouragement on his part for the idea of mass producing the human race not only as much as possible, but in as many places as possible. Dr. Klein would have to of thought this when he reviewed Dr. Weatherford’s statements for his own article. Rather than