The Differences between a Common Law System and a Civil Law System

A state's law system, which is made up of its legislature, is a collection of regulations. The laws are subject to enforcement by the state-authorized authorities and have state-recognized sanctions. Law aids society in comprehending the value of a legal framework. A "union of secondary and primary rules" is a legal structure. (Hart 2012, p. 32). The main norm describes particular areas of law, like employment and criminal law. Law professionals use the secondary rule to interpret and implement main rules. However, Hart’s definition is criticised due to its simplicity; it fails to elucidate on the specifics of legal systems. The legal system requires; (i) laws, and (ii) the structures and rules governing its operation, including powers for enforcing and interpreting the law.

The development of the common and the civil law systems is integral to the society. The roots of the civil law system date back to the period of the Roman laws (Corpus Juris Civilis). The term civil law, being one of the classifications of the English law, includes the law of tort, law of contract, and employment law. The civil law should not be confused with the civil law system. The civil law systems have morphed to the extent of associating with several features. The core principles of the civil law system include the existence of separate courts for every code, a binding legislation with minimum jurisprudence for judge-made laws, and citizens’ rights expressly conferred by the law. In addition, written constitution based on guidelines that protect the fundamental duties, and the existence of influential writings by legal scholars within some of the civil law jurisdictions form part of the civil law system.

The common law system carries the same importance. It is recognised as having originated from England during the Norman Conquest in 1066. The common law systems is an amalgamation of state-legislative body and binding judicial decisions by which citizens get permission to engage in undertakings that are not prohibited by law. Again, the existence of a working constitution which refers to the entire system of the government is regarded as a component of the common law (Bannet 2013, p.7).

There are differences between common and civil law systems. According to the principal sources of law, the foundation of the civil law system is formed within legal codes that are created and amended by the judiciary. Concurrently, common law systems exist in statutes and the decisions made depending on legal precedents. Concerning trials, in a civil law system, a judge refers to the law to pass sentences. In the common law system, a jury decides on the defendant’s innocence or guilt, depending on facts presented by the defendant. In addition, a judge’s role in statutory interpretation is essential. The judges in a civil law system are obliged to establish the facts of the case with the assistance of parties. Meanwhile, judges within a common law system, just like judges in a civil law system, aim to establish facts of the case and apply the law with a view of achieving just outcome.

The fact-finding systems of the civil law are inquisitorial. The judge operates as an investigator to acquire the truth about particular facts for trial purposes. The common law system is adversarial. The parties present cases using the specific law chosen. The claims are submitted do oppose each other due to adversaries. Regarding the court's structure, it is normal in a civil law system for only one court to conduct the hearing of the first case that relates to the code. In a common law system, one set of court deals with all criminal law cases and another takes care of all civil law cases (Bannet 2013, p.10).

As for the structure of the court, in a civil law system, the court structure provides the method of appealing to enable the obtaining of the authoritative statement of the law. In common law systems, the court hierarchy is vital in determining the importance of a precedent. The general principle applied is that decisions by the higher courts are integral to the lower courts.

Binding precedents application in common law system applies during a case hearing process. Disputes similar to earlier cases receive the same rulings. However, in civil law system, the principle of using precedents does not exist. Considering the role of legal scholars, they influence initiating case verdicts in the civil law systems. In the common law system, scholars’ role in shaping legal decisions is minor.

Question 2 a. Legislative Competence and Devolution in the United Kingdom

Devolution refers to the allotment of authority to a lesser level from a respective central government to a locally state-authorised body or an administrative region. In the UK, the most recent form of devolution by the Westminster Parliament to Wales, Scotland, and Northern Ireland took place in 1998. Legislative competency is paramount when practising devolution. Legislative competence is a form of secondary legislation, which helps in transferring power to make laws subject to specific policy areas; for example, this was applied by the UK parliament with regard to the Scottish Assembly where the proposed rules become “bills,” and the enacted laws become “acts.”

Legislative competence of the Westminster Parliament enables devolution to take effect in the UK. Devolution in Northern Ireland happened in December 1921 following an agreement that was implemented in 1949. This constitutional event made it difficult for the UK and Northern Ireland to practice legislative competency. According to the Legislative Competence of the Northern Ireland Assembly, lawmaking takes effect according to the power conferred on it by the Westminster Parliament as per the Section 6 of the North Ireland Act of 1998. The Northern Ireland Assembly can be challenged under Section 10 of the North Ireland Act of 1998 if it appears to act outside their competency. The Northern Ireland Executive has powers over transferred matters (s4 (1) Northern Ireland Act, 1998).

Question 2 b. The Legislative Competence of the Welsh Assembly

The Welsh devolution plans regarding Legislative Competency have always initiated reforms. Wales administration has revised its legislative competencies several times with changes. The newly reserved power by the Wales Act of 2017 focuses on enhancing a lasting devolution. The Wales Act 2017 has settled the conferred power model debates. Legislative competency concerning power centralisation between London and Cardiff fuels discussions over judicial policing. Therefore, several Legislative Competency Acts in 1998, 2006, and 2017 make Wales assume liberalism in governance; Wales continually provides a primary approach to policymaking as elaborated in 1998, 2007, 2011, and 2017 (Moon & Evans, 2017, p. 340).

According to s108A (1) of the Wales Act 2017, an Act of the Assembly cannot operate as law if the Act is outside the Assembly. However, s108 of Wales Act 2006 advocates that an Act of the Assembly may make any provisions subject to being created by a legislative act. In s108A (2), a recommendation is deemed outside the competency form as any of the following legislations becomes applied; section 2a considers that competency extends only to England and Wales (Government of Wales Act 2006). Section 2b reveals that competency relates only to Wales through allocating power to modify functions exercised in Wales. Section 2c relates to matters reserved and section 2d goes against listed restrictions as per the Wales constitution. Section 2e states that Welsh recommendation and competence are not compatible with the European Union Laws or the Conventional Rights. In a similar contrast, s108 (2) of the Wales act specifies that an Act of the Assembly cannot face law enforcement if any provision is outside the scope of the Assembly’s legislative competence.

Section 108 (A) (6) claims that questions on provisions of the Acts of the Assembly are determined in a reserved manner by referring to the provision’s purpose after regarding other issues to its effect under all circumstances. However, s108 (6) adds that provisions fall in subsection (4) and (5) do not have a place in the Assembly’s legislative competence. Section 108 (6) specifics include; (a) the particulars of Welsh restrictions, and (b) rules extending outside England and Wales (Wales Act 2017). Section (c) discusses amendments incompatible with community laws.

Question 3. Note-taking and Reading Methods

Note-taking is one of the most recommended methods to use during the reading process. Note-taking skills vary, and students prefer working using specific methodologies. However, considering scholarly approaches that enhance a proper reading method, a law student needs to be comprehensive while taking notes.

For example, some of the practical note-taking skills that worked advantageously include recognition of crucial points, identification of relevant information, paraphrasing, utilisation of references, and the use of diagram formats. While engaging in note-taking, a successful completion of work is essential. The choice of an appropriate method is vital and may determine success of the assignment. Besides, the improvement of note-taking and reading methods can be improved through the utilisation of scholarly strategies like thought inclusion, understanding the organisation of information, and identifying the purpose of reading specifics. The organization also enhanced the effectiveness of research. For instance, the information concerning general concepts and terms was collected from units, analyzed and then used to compare the section of the Wales Act.

References

Barnett, H., 2013. Constitutional and administrative law. London: Abingdon Routledge.

Government of Wales Act 2006. Legislation.gov.uk. Available at: https://www.legislation.gov.uk/ukpga/2006/32/section/108 [Accessed November 2, 2017].

Hart, H.L.A. 2012. The concept of law. Oxford: Oxford University Press.

Moon, D.S. & Evans, T., 2017. Welsh devolution and the problem of legislative competence. British Politics, 12(3), pp.335–360.

Northern Ireland Act 1998. Legislation.gov.uk. Available at: https://www.legislation.gov.uk/ukpga/1998/47/contents [Accessed November 2, 2017].

Wales Act 2017. Legislation.gov.uk. Available at: http://www.legislation.gov.uk/ukpga/2017/4/contents/enacted [Accessed November 2, 2017].