THE TWO TRADITIONS OF LAW

Brainstorm
1. Which legal system does your country belong to?
2. What are the distinctive features of this system?
3. What are the peculiarities of the court procedure in your country?

Task 1. Read the information below and answer the following comprehension
questions:
1. Where is the law found in the continental and Anglo-Saxon legal systems?
2. Why is the Justinian Code considered an outstanding legal document?
3. What factors caused the codifications of civil law along national lines?
4. What is the role of a judge in the inquisitorial court procedure?
5. Explain the principle underlying a centralized court system.
6. What is the essence of the Doctrine of Precedent?
7. What do you know about the origin of a trial by jury?
8. What are the two uses of the term “common law”?

Continental law
Continental systems are known as codified legal systems because the law is
contained in law codes, that is, a more or less systematic and comprehensive written
statement of laws. The law of continental Europe originated in Ancient Rome, from the
time of the founding of the city of Rome in 753 ВС. In the 5th century AD, when the

1
Western Roman Empire fell under the onslaught of Germanic tribes, Roman law ceased
to exist there, but it continued its existence in the Eastern (Byzantine) Empire. In the 6th
century Byzantium gave legal history an outstanding legal document - the Justinian
Code, created by the emperor Justinian, which remained in use in Byzantium as late as
1453.
In Western Europe, the laws of the Franks, Burgundians, Goths, and Lombards
largely replaced Roman law. However, in the late 11th century, as universities came into
being, scholars rediscovered Roman law. The Holy Roman (or German) emperors, who
regarded themselves as the successors of imperial Rome, accepted the Justinian Code as
being still in effect. As a result, the old Germanic feudal and ecclesiastical laws were
fused with the Roman laws. Besides, the lawmakers were influenced by the model of the
canon law of the Roman Catholic Church. The system thus formed took the Latin name
jus civile, or civil law.
In the 17th century, the Reformation and the rise of nationalism led to a series of
codifications of civil law along national lines. The most significant of these codifications
were the French and the German; these codes each serve as the model for a major
division of the civil-law system. The French group includes, in addition to France and its
former possessions - overseas, The Netherlands, Belgium, Luxembourg, Italy, Spain, and
many Latin - American countries. The German group includes Germany, Austria,
Switzerland, the Scandinavian countries, and certain countries outside Europe, such as
Japan, that have westernized their legal systems.
Court procedure in continental systems of law is inquisitorial. The judges hear
criminal cases alone, without juries, and try to get at the truth by inquiring into the case,
directing investigations and questioning witnesses. In this system the counsel for the
prosecution and defense only ask additional questions of witnesses and summarize the
evidence at the end of the trial. The leading role in the trial belongs to the judge -
investigating the case, trying it and passing sentence.

2
 Common Law
Common law, also called case law, is the law which has been administered by the
English courts since the 11th century, since the Norman Conquest. Originally, procedure
in English local and feudal courts resembled quite closely that of other countries with a
Germanic legal tradition. But unlike the countries of continental Europe, England resisted
the introduction of Roman law. Instead, it developed its own system capable of
substantial growth. Several features distinguish it prominently from civil law. Unlike
continental Europe, where the judicial systems were not centralized and justice was
administered in a multitude of local courts, Norman kings created a centralized court
system. Royal judges travelled from London to regions and applied common legal
principles to most parts of the land. Gradually, by the 14th century, law common to the
whole kingdom was developed - hence the term 'common law'.
The most important principle of this legal system to this day remains the Doctrine of
Precedent. Under this doctrine, courts are bound, or tied, by the decisions of previous
higher courts. This means that when the essential elements of a case are the same as those
of a previous recorded case, the judge has to reach the same decision regarding guilt or
innocence. But if the decision was made by a lower court or a court of another
jurisdiction, or if it can be shown that the essential elements of a case differ from
previous cases, then there is no obligation on the judge to follow precedent. In situations
where no precedent can be found, the judge will apply existing customs and laws, and his

3
own common sense to the new case, and his decision will become a precedent for other
courts to follow when a similar case arises.
Besides case law, i.e. law contained in judicial decisions, there is a growing body of
statutory law, i.e. law made by Parliament. Statutes modify and clarify the common
law, or make rules where none existed before. But even statutes often need to be
interpreted by the courts in order to fit particular cases, and these interpretations become
new precedents. Thus, in common-law systems the law is found in court rulings, which
are published in Law Reports, and in government statutes, which are contained in Statute
Books. The term 'common law' therefore has two distinct uses: as a generic term, it
denotes the whole of Anglo-American law; in a narrower sense, it denotes judge-made
law as opposed to statutory law.
Another peculiarity of common law is trial by jury. Although there have been
attempts to introduce it outside the Anglo-American legal orbit, they have been limited
and largely unsuccessful. The origin of the jury is disputed: it may have already existed in
England or have been taken there by the Norman invaders in 1066. Originally, the jurors
were local people, respected in the community, who passed judgment on the basis of
what they themselves knew. A modern jury is a group of laypersons, selected at random,
who are called upon to assist the judge in the administration of justice.
Court procedure is adversarial. In this system, the prosecution and defense, as
adversaries, fight the case out before a jury, and, unless a procedural problem arises, the
judge simply listens to the presentation. Each side produces the best evidence it can in
support of its case, and does its best to destroy the case of the opposing party. The key
role in deciding the guilt of the accused belongs to the jury. The jurors determine the
facts of the case on the basis of the evidence presented in court and bring the verdict; on
the strength of the jury's decision the judge passes sentence.
The spread of common law in the world was due both to the once widespread
influence of Britain in the world and the growth of its former colony, the United States.
Yet, the term Anglo-American law is an abstraction from the variety of legal systems that
exist in countries that were once part of England's heritage. Countless differences set one
system apart from another. In the United States, for example, each state has its own
statutes and its own common law, and federal law makes up only a small part of
4
American law. In Canada, Quebec is an island of French law in the Canadian sea of case
law. In many countries of the British Commonwealth, English common law exists
alongside national law, each regulating different spheres of public and private life. In
Britain itself the law is not uniform: Scotland and Northern Ireland are separate
jurisdictions with their own courts and laws; so English law operates only in England and
Wales.
Task 2. Summarize the information from the texts above paying attention to the
main differences between the two systems described.
Task 3. Translate the following text into English:
Англосаксонская правовая семья включает в себя две группы: группу
английского права (Англия, Северная Ирландия, Канада, Австралия, Новая
Зеландия, бывшие колонии Британской империи-36 государств) и право США, за
исключением штатов Луизиана и Калифорния, где значительную роль играют
французское и испанское право.
Основным юридическим источником в английской правовой системе
является юридическая практика, опирающаяся на прецеденты, то есть на ранее
вынесенные судебные решения. Также большое значение придается статутному
праву. Англия не имеет писаной конституции. Отрасли английского права
выражены менее четко, чем в континентальных правовых системах.
Романо-германская правовая семья состоит из двух групп правовых систем:
романской (Франция, Бельгия, Италия, Испания, Португалия, страны Латинской
Америки) и германской (Германия, Австрия, Венгрия). Основным источником
континентальной правовой семьи является позитивное право, то есть юридические
нормы, сформулированные в конституциях, кодексах, текущих законах.
Во всех странах романо-германской семьи существует деление на частное и
публичное право. К публичному праву относятся те отрасли, которые определяют
компетенцию, порядок деятельности органов государства и отношения государства
к индивиду. К частному праву относятся отрасли и правовые институты,
регулирующие отношения частных лиц между собой. Некоторые отрасли права
относятся к «смешанному праву», в частности, трудовое право, где нормы частного
и публичного права тесно переплетены между собой.
5