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The main differences between the civil and the common law systems

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Eleve fonctionnaire stagiaire
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Advanced
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European law
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ENS de Cachan

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term papers
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  1. Introduction.
  2. Different historical background to a different legal thinking.
  3. Different legal thinking to the same goal.
  4. Conclusion.

The majority of legal authors divide the legal systems in the world into two mains groups : the common law on the one hand and the civil law on the other hand . The most interesting is that when you try to find definitions for those words, you often find the basic definition and then as a conclusion you are told to distinguish the two systems. For instance, we can look at the definitions given by Britannica Encyclopedia for those two notions. Civil law is defined as "a body of law developed from Roman law and used in continental Europe and most former colonies of European nations, including the province of Quebec and the U.S. state of Louisiana The basis of law in civil-law jurisdictions is statute, not custom; civil law is thus to be distinguished from common law." Then, common law is defined as "a body of law based on custom and general principles and that, embodied in case law, serves as precedent or is applied to situations not covered by statute. Common law has been administered in the courts of England since the Middle Ages; it is also found in the U.S. and in most of the British Commonwealth. It is distinguished from civil law." Since those two systems are both used in the European Union, it might be interesting to look at their differences concretely. So, here we will focus on the main differences between civil and common law as define above. We will concentrate our discussion on the civil and common law as used on the European continent. Rather than focusing on each differences which will lead us to a descriptive listing, we will adopt an evolutive approach. Thus, we will look at the historical background of each systems and how it has influence their actuals characteristics (I). Then, we will focus on the main difference between civil and common law, that is to say the legal thinking, notwithstanding the fact that they always have the same purpose : regulate and harmonize the human activity . (II)

[...] We are here at the heart of the differences between civil and common law. Indeed, due to history, the development of the two systems has been really different. This poses great difficulties for a continental jurist to understand the common law system and vice versa. For instance, there is no distinction between and ?private? law in English law. Whereas this distinction is a natural one for a French civilian. Opposite, there is no such thing as the word in French. [...]


[...] Thus, we will look at the historical background of each systems and how it has influence their actuals characteristics Then, we will focus on the main difference between civil and common law, that is to say the legal thinking, notwithstanding the fact that they always have the same purpose : regulate and harmonize the human activity[4]. From a different historical background to a different legal thinking ?Common law comes from the court, continental law from the study?[5]. This quotation is really interesting since it reveals the heart of the distinction between the two legal systems. [...]

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