Common Law vs. Continental Law: Understanding Legal Systems

Common Law

Common law began to be applied in medieval England and expanded throughout the British Empire and its areas of influence. It has traditionally been based more on jurisprudence than on statutory law. Countries with common law systems include England, Wales, Ireland, India, and Australia. This system relies on the analysis of judicial decisions in lower and superior courts. Judicial interpretations can even create new legal figures. However, this has evolved over time, and now statutory law plays a more significant role than jurisprudence.

Ratio Decidendi: The essential reason that resolves a sentence determines the rest of the statements. In short, common law is based on case law. While common law has tended towards codification, it has historically relied on written standards so that everyone may understand the system.

Continental Law

Continental law statements are supported by other judges who have been recognized as having a decisive nature. Common law was initially customary law, based on tradition and custom. Subsequently, there has been a tendency towards codification. In contrast, continental European law has its roots in Roman, Germanic, and Canon law. It also received great influence from artwork, creating the foundations of 18th-century liberalism. It is based on the rules of the legislature, and the executive also has greater democratic legitimacy. These rules are interpreted by judges on a case-by-case basis. Precedent has gained some importance in the continental system because it needs to acquire more legal certainty.

Relations Between the State and Law: Rule of Law

The origins of the rule of law lie in the achievement of ending tyranny and arbitrariness. With the liberal revolutions, the rule of law emerged due to the needs of the bourgeois social class. The Old Regime was a society of estates with a mercantilist economy (with many taxes). In this society, the bourgeoisie had to make a revolution to develop their potential. It went from absolute political power to a state power limited by law.

Traits that Characterize the Rule of Law

Only states under the right rule of law are considered as such. In a broader sense, the rule of law is at work under legal rules.

Sovereignty: Supreme Power

Under the Old Regime, we find divine legitimacy, and sovereignty was led by the sovereign or the monarch. The fact that a state has a set of rules does not necessarily mean that it is a rule of law.