NationStates Jolt Archive

Shortest OP ever, but I'd imagine it could be quite a debate.

http://en.wikipedia.org/wiki/Common_law
http://en.wikipedia.org/wiki/Civil_law_%28legal_system%29

Which do you think is better?

Common law by an astronomical margin.

Hmm, hard to say really.

Common law by an astronomical margin.

what's so great about being ruled by what a bunch of old judges thought in the past?

I'm really not sure I care. A more important difference seems to be (to me) whether a court is inquisitorial or adversarial in nature.

Civil Law is fundamentally more stable and more flexible. However, Civil Law, since it cn be changed so easily, must have a strong and inflexible Constitution backing it up, or it becomes mere tyranny.

Common Law is the only protection for the common man in nations (such as the United Kingdom) which do not have a constitution.

Common Law is the only protection for the common man in nations (such as the United Kingdom) which do not have a constitution.

http://en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom

Civil Law.

http://en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom

That which is unwritten does not exist. The UK's "unwritten constitution" does nothing, since the parliament can ignore it at a whim.

Common law, proven effective and adaptive.

Civil Law is fundamentally more stable and more flexible. However, Civil Law, since it cn be changed so easily, must have a strong and inflexible Constitution backing it up, or it becomes mere tyranny.

Common Law is the only protection for the common man in nations (such as the United Kingdom) which do not have a constitution.Que? How can something be both stable and be changed easily at the same time?

I would have to say that common law is more stable as it takes alot of overhwhelming evidence to go against prevailing precedent.That which is unwritten does not exist. The UK's "unwritten constitution" does nothing, since the parliament can ignore it at a whim.Nononono... The UK constitution IS (mostly) written. It just isn't written down all in one place. That parliament can ignore it at a whim derives from fact that Parliament is sovereign not that the constitution isn't codefied. Indeed, the US Congress can ignore the constitution at a whim. All it has to do is pass an amendment. The only difference is that Parliament has to pass such a motion by a simple majority, as opposed to the Congress's 2/3 majority.

However, what the UK constitution is protected by is precedent. The socialisation of ideas in the core of people's minds. It's like morality. No matter how well reasoned your argument your are highly unlikely to convince some to change their morality indefinitely. You might be able to bribe to change it for a while, but not for ever. To change the US constitution all that is required that you have 70 senators in your pocket for a short period of time. That Governments can only form if they have a majority in the commons is a habit, not a law. Habits are much harder to break than laws.
I think I've romanticised the UK legal system quite enough for today

That which is unwritten does not exist. The UK's "unwritten constitution" does nothing, since the parliament can ignore it at a whim.

It's worse than that. Parliment can simply re-write it very easily.

The Constitution of the United Kingdom is uncodified, consisting of both written and unwritten sources. There is no technical difference between ordinary statutes and law considered "constitutional law." Therefore the Parliament of the United Kingdom can perform "constitutional reform" simply by passing Acts of Parliament and thus has the power to change or abolish any written or unwritten element of the constitution. The constitution is based on the concept of all sovereignty ultimately belonging to Parliament (Parliamentary sovereignty), so the concept of entrenchment cannot exist. The lack of a central written constitutional document explaining the fundamental principles of the state and relationship between its institutions and between the people leads some constitutionalists to regard the United Kingdom as having "no (formal) constitution." The phrase "unwritten constitution" is sometimes used, despite the fact that the UK constitution incorporates many written sources, statutory law being considered the most important source of the constitution. But the case remains that the constitution relies far more on unwritten constitutional conventions than virtually every other liberal democratic constitution.

I'd tend towards civil law if starting a country from scratch, but common law and scots law works here in the UK and changing it would be absurd.

Que? How can something be both stable and be changed easily at the same time?

I would have to say that common law is more stable as it takes alot of overhwhelming evidence to go against prevailing precedent.Nononono... The UK constitution IS (mostly) written. It just isn't written down all in one place. That parliament can ignore it at a whim derives from fact that Parliament is sovereign not that the constitution isn't codefied. Indeed, the US Congress can ignore the constitution at a whim. All it has to do is pass an amendment. The only difference is that Parliament has to pass such a motion by a simple majority, as opposed to the Congress's 2/3 majority.

However, what the UK constitution is protected by is precedent. The socialisation of ideas in the core of people's minds. It's like morality. No matter how well reasoned your argument your are highly unlikely to convince some to change their morality indefinitely. You might be able to bribe to change it for a while, but not for ever. To change the US constitution all that is required that you have 70 senators in your pocket for a short period of time. That Governments can only form if they have a majority in the commons is a habit, not a law. Habits are much harder to break than laws.
I think I've romanticised the UK legal system quite enough for today

2/3 of the Senate and the House is a lot more than "70 senators" :p

However, what the UK constitution is protected by is precedent. The socialisation of ideas in the core of people's minds. It's like morality. No matter how well reasoned your argument your are highly unlikely to convince some to change their morality indefinitely. You might be able to bribe to change it for a while, but not for ever. To change the US constitution all that is required that you have 70 senators in your pocket for a short period of time. That Governments can only form if they have a majority in the commons is a habit, not a law. Habits are much harder to break than laws.
I think I've romanticised the UK legal system quite enough for today

Well, you also need three quarters of the individual states to ratify any ammendment before it actually passes. So it's actually a lot more involved than just getting a super majority in congress.

2/3 of the Senate and the House is a lot more than "70 senators" :p
Plus majorities in 75 houses of state legislatures.

We actually have both systems in Canada...common law throughout most of the country, with Quebec a bastion of civil law. There are substantial differences between the two systems, but civil law still relies on a significant amount of stare decisis and statutory interpretation, so in practice, those differences tend to blend. Both are still essentially adversarial systems, in contrast to the 'European style' civil law (or so I've been informed). I like what we are doing now which is retaining our common and civil law, and adding alternative dispute resolution mechanisms (such as traditional aboriginal systems) to supplement the courts.

Civil law, and yes with a Constitution.

Common law may be based on one's culture (say, British culture) and is based on (unwritten) prevailing practices and mores in the community. In the age of migration and population exchange, newcomers may easily violate that common law because they do not know it. It's nice that rules are written down.

No law at all. We should have a dictator who can do whatever the hell he pleases in order to enforce his way of life. Think about it - if you don't want people to do something, which course of action is more swift and effective? Browbeating the law through some legislative body full of old, out-of-touch codgers who care more about their pocketbooks than the nation's well-being? Or a swift punishment of some offenders to describe what happens when people break the law? I know that, if I saw people hanging from a rope in a public square and their crime was stealing money, I sure as hell wouldn't steal money.

No, seriously, that sort of mentality never works. And frankly, with any new democracy, civil law is the way to go, and a codified Constitution is the best way to establish it. There's no point in setting up a system that says, "Well, in 1204 Joebob got caught stealing a goat and was sentenced to lose both his hands, so that's a precedent despite the fact that King Ahmed the Insane was ruling and he wanted to add those hands to his collection." Some nations, such as the UK, can do that effectively, but any new nation should try to avoid that.

Civil law, and yes with a Constitution.

Common law may be based on one's culture (say, British culture) and is based on (unwritten) prevailing practices and mores in the community. In the age of migration and population exchange, newcomers may easily violate that common law because they do not know it. It's nice that rules are written down.

Simply writing all the laws down in a book does not necessarily mean that laws will suddenly become more accessible. Most civil law jurisdictions still rely very heavily on precedent. Precedent does not mean that courts will invariably make outdated decisions...the common law absolutely evolves over time, as society shifts and values change.

Simply writing all the laws down in a book does not necessarily mean that laws will suddenly become more accessible. Most civil law jurisdictions still rely very heavily on precedent.

:D you have been waiting for a law thread haven't ya?

Simply writing all the laws down in a book does not necessarily mean that laws will suddenly become more accessible. Most civil law jurisdictions still rely very heavily on precedent.

Yeah, it's not like newcomers to an area will read said written law. When I moved to Colorado I didn't buy a copy of the Colorado Compiled Law to read while on the shitter.

Yeah, it's not like newcomers to an area will read said written law. When I moved to Colorado I didn't buy a copy of the Colorado Compiled Law to read while on the shitter.Exactly...and even if you DID...would you necessarily understand it? Just look at the huge variety of codified statutes and regulations...hell, just take any Highway Traffic Safety Act...who has read completely through that? Yet still, the majority of people can figure out how to drive legally fairly easily.

Yes, it's nice to have things all written down, and perhaps it can even convince you that the law is SET, but that is hardly the case even in civil law. The untrained layman is still not going to be able to interpret the law easier in a civil system than in a common law system.

:D you have been waiting for a law thread haven't ya?No, not really...funny thing is that since I started studying law, I avoid discussions on the law much more than I ever did...because now I know how little I know. Before, I just waded in with my opinions with little real understanding of how the system works. I can't do that anymore:( Besides...there are people on this forum who would kick my ass in a legal argument if I got too big for my britches.

Have to agree with the comments. However, I still think relying more on civil law than on common law will make people fit in easier with the justice system.

Have to agree with the comments. However, I still think relying more on civil law than on common law will make people fit in easier with the justice system.

In what sense exactly?

Which do you think is better?

Do we really have to choose between the two?

I think it's good to have a mixture of the two. That way the pros and cons of each system balance each other. Too much common law tends towards chaos and disorganisation, and too much civil law will tend to produce laws and systems that are unsympathetic and inefficient.

A good balance between the structure civil law creates, and the fluid adaptablity of common law, will produce the best result.

Some actions that I consider to be just fine may be illegal in other communities... and I just didn't know it and got my ass grilled for it. Common law relies heavily on traditions that a newcomer may not necessarily be familiar with...

Oh, why am I even arguing :confused: when I'm actually confused?? I'm ignorant in these things... 'Cause here we do not have common law, we only have civil law. For example, we need to undergo the proper process for us to be recognized as married. In other countries, they have common-law marriage. I don't know if I confuse the matter, but I'm glad if somebody clears the matter for me. :)

Some actions that I consider to be just fine may be illegal in other communities... and I just didn't know it and got my ass grilled for it. Common law relies heavily on traditions that a newcomer may not necessarily be familiar with... Civil law relies on traditions as well, and as has been pointed out, a civil code does not ensure that you, moving into a new community, are going to immediately figure out the laws of the land, any quicker than you would in a common law jurisdiction.

Oh, why am I even arguing :confused: when I'm actually confused?? I'm ignorant in these things... 'Cause here we do not have common law, we only have civil law. For example, we need to undergo the proper process for us to be recognized as married. In other countries, they have common-law marriage. I don't know if I confuse the matter, but I'm glad if somebody clears the matter for me. :)

In a common-law jurisdiciton, there is also a 'proper process' for a marriage to be recognised. There are statutes (yes, law that are actually written down) that lay out the process and the requirements. This is also true of common-law marriages. There are certain limitations on who can be considered to be in a common-law marriage, there are certain rights and responsibilities that are conferred upon them by statutes. There are also cases that help the courts interpret this legislation if there are instances of conflict.

So it isn't a case of 'written rules' versus 'no written rules'. It's a difference in approach that often times isn't really all that different.

In recent years, both common and civil law methods in Europe have been slowly creeping together because of the EU. Neither civil nor common law are perfect, and civil law does not necessarily protect the government from conducting itself with little or no regard for the constitution. Admittedly, most civil law countries do have constitutional review through constitutional councils, but judicial review is also possible in common law jurisdictions as well, which can result in law x being quashed.

It all depends on whom the legislators are, really.

I was going to write, "Geez, who cares?" Then I realized that if I don't care, maybe I shouldn't weigh in to the issue. BUT, that is a major distinction between U.S. politics and, say, Australian politics. In the U.S., extremists tend to rule the roost because the people who don't care just don't get involved. In Australia, voting and whatnot is compulsory, so their government is necessarily moderate. I happen to agree with the latter way of doing things, so I will proudly put in my two cents here:

Geez, who cares?

I was going to write, "Geez, who cares?" Then I realized that if I don't care, maybe I shouldn't weigh in to the issue. BUT, that is a major distinction between U.S. politics and, say, Australian politics. In the U.S., extremists tend to rule the roost because the people who don't care just don't get involved. In Australia, voting and whatnot is compulsory, so their government is necessarily moderate. I happen to agree with the latter way of doing things, so I will proudly put in my two cents here:

Geez, who cares?
Um, just to point out...the US and Australia are both common law jurisdictions. So...huh?

... So it isn't a case of 'written rules' versus 'no written rules'. It's a difference in approach that often times isn't really all that different.

I understand now. Thanks! :D

I am starting to agree with Eudeminea's suggestion. Really useful when I start to create the fictional justice system of my fictional NS nation.

Um, just to point out...the US and Australia are both common law jurisdictions. So...huh?

That actually had nothing to do with my post. I was just pointing out my general apathy and debating whether or not that meant I should be contributing to the thread.

That actually had nothing to do with my post. I was just pointing out my general apathy and debating whether or not that meant I should be contributing to the thread.

So it was just a random, and totally unrelated post, stuck in for the heck of declaring that you will not actually be participating? How odd.

So it was just a random, and totally unrelated post, stuck in for the heck of declaring that you will not actually be participating? How odd.

Well, why don't you read it again? I was having a bit of fun with the ideas behind politics and applying them to real life. Then again, satire has long been a misunderstood form of humor.

Well, why don't you read it again? I was having a bit of fun with the ideas behind politics and applying them to real life. Then again, satire has long been a misunderstood form of humor.

I'm not in the mood for satire...I haven't had a coffee yet. *shifty eyed* And just to clarify...I was being pedantic for the sake of being pedantic.

Well, you also need three quarters of the individual states to ratify any ammendment before it actually passes. So it's actually a lot more involved than just getting a super majority in congress.That's a good safety feature. Didn't know about that. Well still, neither common law or civil law work particularly well. Civil liberties in both the USA and the UK have easily been eroded.

That's a good safety feature. Didn't know about that. Well still, neither common law or civil law work particularly well. Civil liberties in both the USA and the UK have easily been eroded.

It was that same system that beefed up civil liberties in the same jurisdictions. No judicial system absolutely guarantees that civil liberties will never be eroded.

It was that same system that beefed up civil liberties in the same jurisdictions. No judicial system absolutely guarantees that civil liberties will never be eroded.Yes, but the difference in systems between the UK and the US seemed to make little difference.

Actually, I seem to remember that the Supreme court ruled that 'enemy combatants' can be held without charge or trial, whereas the Law Lords ruled that foreigners cannot be held withour trial or charge in the UK. Whilst the law lords don't have the power to rule the law unconstitutional (which I believe the supreme court does have), it does mean that any future ruling under that subsection of the law can easily be appealed against as there is now a precedent. Effectively rendering that part of the law useless. Meaning that Parliament has to repeal that part of the law or 'rephrase' it. It would appear that the UK system, in this case, was more resilient to change than the US system.