Common Law vs. Continental Law: Legal Systems and the Rule of Law

Summary

This document compares the common law and continental law traditions, outlining their origins, sources of law and the role of judicial decisions in each. It also explains the origins of the rule of law as a limit on absolute power during the liberal revolutions.

Key points

Common law began in medieval England and spread through the British Empire, relying traditionally on jurisprudence and judicial decisions.
Ratio decidendi is the essential reason of a judicial decision that resolves the case and guides later rulings.
Continental law has roots in Roman, Germanic and Canon law and is based mainly on legislative rules interpreted by judges.
Precedent has gained importance in the continental system to provide greater legal certainty.
The rule of law emerged with the liberal revolutions, limiting absolute monarchical power through law.
Only states that operate under the rule of law, with legal rules limiting power, are considered to have it.

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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.

FAQ

Which countries have common law systems?

The text lists England, Wales, Ireland, India and Australia as countries with common law systems.

What is ratio decidendi?

Ratio decidendi is the essential reason that resolves a sentence and determines the rest of the statements in the decision.

Why did the rule of law emerge?

The rule of law emerged with the liberal revolutions to end tyranny and arbitrariness, responding to the needs of the bourgeois social class.