What Is the Difference between Common Law and Customary Law

Most customary laws deal with community norms that have long been established in a particular place. However, the term can also be applied to areas of international law in which certain norms have been almost universally accepted as the correct basis for action – for example, laws against piracy or slavery (see hostis humani generis). In many, but not all, cases, customary law will have supporting court decisions and jurisprudence that has evolved over time to give additional weight to its rule of law and also to demonstrate the evolution (if any) in the interpretation of such a law by the competent courts. In the Scandinavian countries, customary law still exists and has great influence. A very important split in today`s Europe exists between two types of legal systems: the Continental with foundations in civil law (law with a legal basis ultimately Roman) and the English common law. Both trace their continuing history back to the twelfth century. This project reassesses this important period of legal history by comparing not only English common law and continental civil law (or “ius commune”), but also customary laws that are of crucial importance in continental Europe even beyond the twelfth century. Such laws shared many characteristics with English law, and the comparison therefore interferes with the simplistic distinction between English and continental. The project first analyses the form, functioning and development of local, national and supranational laws. Similarities, differences and influences are then examined from the perspective of a longer-term European legal development. An appropriate historical examination of the subject is very topical due to the current invocation of so-called legal histories, whether it is the politicized celebration of English common law or the rhetorical use of common Ius as a precedent for a European common law.

The United States, Canada, England, India and Australia are generally considered common law countries. As they were all once subjects or colonies of Great Britain, they often maintained the common law tradition. The state of Louisiana in the United States uses bijudicial civil law because it was once a colony of the France. Judges` decisions are still binding in common law countries, but that does not mean that the decision cannot be appealed. In the United States, for example, cases can be heard by a network of federal or state courts, with the Federal Supreme Court having ultimate power. In general, the judgment of the last court seized of a case remains the final and binding judgment. This case could later serve as a precedent for pleading similar cases in the future. Lawyers continue to represent the interests of their clients in civil proceedings, but have a less central role.

However, as in common law systems, its functions often consist of advising clients on legal matters and preparing pleadings for submission to the court. But the importance of oral proceedings, court presentations and active advocacy in court is diminished compared to a common law system. In addition, non-procedural legal tasks, such as preparing wills and drafting contracts, may be left to quasi-lawyers who serve businesses and individuals and who may not have post-graduate legal training or are not allowed to practise in court. The common law is based on institutionalized opinions and interpretations of judicial authorities and public juries. Like civil law, the objective of the common law is to achieve consistent results by applying the same standards of interpretation. In some cases, precedent depends on the case-by-case traditions of each jurisdiction. As a result, common law elements may differ from district to district. In Indonesia, the customary laws of the country`s various indigenous ethnic groups are recognized, and in Papua, the usual settlement of disputes is recognized. Indonesian Adat law is mainly divided into 19 counties, namely Aceh, Gayo, Alas and Batak, Minangkabau, South Sumatra, the Malay regions, Bangka and Belitung, Kalimantan, Minahasa, Gorontalo, Toraja, South Sulawesi, Ternate, the Molluks, Papua, Timor, Bali and Lombok, Central and East Java, including the island of Madura, Sunda and the Javanese monarchies, including the Sultanate of Yogyakarta. Surakarta Sunanate, and the princely states Pakualaman and Mangkunegaran. In civil law systems, on the other hand, codes and laws are designed to cover all eventualities, and judges have a more limited role in applying the law to this case. Past judgments are nothing more than cowardly guides.

When it comes to court proceedings, judges in civil systems are more like investigators, while their counterparts in common law systems are more likely to be arbitrators between the parties presenting arguments. In Canada, Aboriginal customary law has a constitutional basis[14] and therefore has increasing influence. [15] Hund finds comaroff and roberts` thesis on the flexibility of a “repertoire of standards” from which litigants and arbitrators choose among themselves when negotiating solutions unconvincing. [3] He therefore endeavours to refute what he calls the “skepticism of the rule” on his part. He notes that the concept of customs generally refers to convergent behavior, but that not all customs have the force of law. Dog therefore refers to Hart`s analysis aimed at distinguishing social rules that have internal and external aspects from habits that have only external aspects. The internal aspects are the reflexive attitude of followers towards certain behaviors that are perceived as mandatory according to a common standard. External aspects are manifested by regular and observable behavior, but are not mandatory. In Hart`s analysis, social rules thus boil down to customs that have the force of law. The main difference between the two systems is that in common law countries, case law – in the form of published judicial notices – is of paramount importance, while in civil law systems, codified laws prevail.

But these divisions are not as clear as they may seem. In fact, many countries use a mixture of features of the general law and civil law systems. Understanding the differences between these systems first requires understanding their historical underpinnings. In contrast, lawyers in a common law country make presentations to the judge (and sometimes to the jury) and hear witnesses themselves. The procedure is From time to time, the common law has created the basis for new laws that must be written. For example, the United Kingdom has long had a common law offence of “indecency”. Over the past decade, authorities have used this old customary law to pursue a new intrusive activity called upskirting: the practice of putting a camera between a person`s legs without their consent or knowledge to make a photo or video of their private parts of sexual satisfaction or humiliation or distress. In February 2019, the UK Parliament passed the Voyeurism (Offences) Act, which formally makes upskirting punishable by up to two years in prison and the possibility of including a convicted person in the sex offender register. At common law, the judge often acts as an arbitrator, since two lawyers represent their side of the case. Typically, the judge and sometimes a jury listen to both parties to reach a conclusion on the case. The original source of the common law system dates back to the English monarchy, which issued formal orders called “writs” when justice was to be done. Since pleadings were not sufficient to cover all situations, fair courts were eventually created to hear complaints and develop appropriate remedies based on principles of fairness from many sources of authority (such as Roman law and “natural” law).

As these decisions were collected and published, the courts were able to look for precedents and apply them to ongoing cases. .