Done with Civil Procedure, on to Criminal Law

• Civil law and courts of equity: the common law is hybrid law

  The Roman civil law tradition (which prevails in Europe) has had a larger impact on American jurisprudence than is generally acknowledged. Indeed, although the United States considers itself a common-law country, we in fact use a system that combines common (judge-made, customary, adversarial, precedent-focused) with civil (usually statute-based and inquisitorial) law, but which in England focused on "equity" or fairness and justice.

  
  
• Civil law's influence on early United States law

  It is a law-school maxim today that the United States is a common-law country, while most of Europe uses civil law: English-derived common law has as its most basic tenet the binding nature of judicial precedent, while Roman-derived civil law privileges statutes. But the more I investigate the history and details of each, the more clear it becomes to me that the United States, at least, owes (almost?) as much of its legal system to civil law as it does to "pure" common law.

  
  
• Liberty or inflexibility: reading Antonin Scalia

  Antonin Scalia, current Supreme Court justice and originalist extraordinaire, wrote "Common-Law Courts in a Civil Law System" as a part of A Matter of Interpretation: Federal Courts and the Law. In it explains his approach to legal reasoning and especially to Constitutional interpretation, and especially rejects both legislative history and the so-called "living Constitution" of liberal justices like Stephen Breyer.

  
  
• Google executives on trial for criminal liability in Italy

  I'm generally in favor of holding companies liable for their actions -- after all, if we treat corporations as "persons" under the law, then they should have responsibilities as well as protections and benefits. But I'm not sure about holding executives criminally liable -- perhaps in the case of knowing pollution or conspiracy to cover up product dangers -- but not, I think, for actions they are not directly responsible for, as in this case from Italy.

  
  
• The (scientific) development of common-law precedent

  One of the defining characteristics of common law (as opposed to civil law) is the binding nature of precedent, sometimes referred to by its Latin name of stare decisis. But before the seventeenth century, the defining characteristic of English common law was not this one, but rather that common law reflected universal and customary law, and as such the goal was for judges to utilize previous decisions as merely guides to help them get closer to the true (unwritten) laws of England, not as binding in themselves.

  
  

Post title: Done with Civil Procedure, on to Criminal Law

Authored by: krisnelson

Date posted: May 4, 2007

Categorized as: education • law

Tagged with: law

Alternate URL: /2007/05/done-with-civil-procedure-on-to.html