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Differencies in substantive law and procedural law between common law and civil law - Essay Example

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Common law originated from England in the eleventh century and spread to other countries (Nestorovska). Private law has been initiated in most countries because of the existence of common law…
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Differencies in substantive law and procedural law between common law and civil law
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Task Introduction Civil laws trace their origin from the Roman law, and are majorly practiced in Europe. Common law originated from England in the eleventh century and spread to other countries (Nestorovska). Private law has been initiated in most countries because of the existence of common law. Substantive law refers to all laws that are under the section of public and private law, which include real properties and criminal laws (Beatty and Samuelson 12). Procedural laws are set of guidelines that determine the way a court rules and makes judgments. In this essay, the differences between common law, civil law, substantive law and procedural law are discussed.
Civil Law gives its priorities to the doctrines and especially on the reports of codifiers over jurisprudence. The Common Law conversely, gives its priorities to jurisprudence over the canon. To elaborate on the difference of priorities between civil and common law, examining the different roles of legislator in the countries that practice the law (Tetley). For example, French law allows separation of powers since the courts only apply ruling while legislature work is to legislate and make laws. The other difference is that common law canon’s functions is to differentiate cases that appear unsuited to civics, and at some point may criticizes judgments that are made in court that seem to be biased according ruling. The civil law doctrines function is to avoid confusion that might cause a wrong judgment according to legal literature. Therefore, it provides the right procedure for judging difficult cases.
Common law style of evaluating a case is different from the civil law style, since common law analyses cases that are similar in nature and extracts ruling from the previously set rules. The judge might add some rules and directions that do not exist to support the judgment made on the case. Civil law deals with legal principle that are firmly written to make decisions on certain cases (Tarr, 10). The judge comments on the history, the domain, and the application of the law accordingly without altering or adding some information. Therefore, the use and application of general mind is not allowed to be used in civil law to make judgments. Another difference is that civil law majors on the rights and compulsion to get the remedies of a case. It cannot make judgments without the use of legal doctrine that oversee the decision-making. On the contrary, common laws do not follow a set of guidelines or obligation to find a remedy to a case, but can add some knowledge of the law.
Substantive law characterizes the type of crime and how serious the crime is depending on the following reasons that might emerge; whether the suspect is has been involved in other criminal cases, whether they situation was a self defense or whether was a hate crime. Conversely, procedural law contains the rules, which assist the judge to make judgment according to the type of case at hand (Walston-Dunham, 153). It has the methods in which substantive law is structured and administered in the court.
Another difference is that substantive law has independent set of laws that it uses to determine the fate of a case while the procedural laws do not practice independent laws but have to adhere on the already set laws that are to be used without altering any information. The other difference between substantive and procedure law is that procedural describes the steps in which the court will follow and comply with when listening and making judgment. The substantive law defines how the handling of a case and the determination of judgment.
Conclusion
Common laws are different from civil laws in the following factors such as the remedies of the cases, the doctrine style, and the order of priority. Many countries practice either the substantive law or procedure law due to its historical background. The types of a law discussed help to solve various cases that are needed to be solved in a state.
Works Cited
Beatty, Jeffrey, and Samuelson, Susan. Legal Environment. Stamford: Cengage Learning. 2010.
Pg 12.
Nestorovska, Diana. Influences of Roman law and Civil Law on the Common
Law International Law / Internationales Recht. 2005. Pg 79. Web. October 18, 2011.
Available at:
Tarr, Alan. Judicial Process and Judicial Policymaking Stamford: Cengage Learning. 2009.
Pg 10.
Tetley, William, Mixed Jurisdictions: common law vs. civil law (codified and uncodified). Mc
Gill. 2004. Web. October 18, 2011.
Available at: Read More
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