So I just wish our youth could get rid of this indifference and keep away that self-abandonment. Make your voice heard and your action seen, like a firefly shining itself in the darkness of night, independent of a bigger source of light. Such fireflies shall be the only brightness if brighter future doesn’t come; And if a torch or the Sun does arrive, they will disappear with gladness and gratitude to the latter for it illuminates the whole world, fireflies included.
The Anglo-American maritime law system is case law, and the actual judgment result is affected by various factors such as laws and regulations, historical cases, on-site man-made actions, etc.; Mainland China adopts the civil law system, which is statutory law. These penalties are stipulated. In court, judges have discretion, but only a small amount of discretion within the scope of the law. The two have their advantages and disadvantages. It is hard to say which one is superior. A simple comparison is as follows.
|Anglo-American (Marine) Law System||Continental Law System|
|Judicial power||Division of labor between judges and jurors||Unified exercise by judges|
|Source of Evidence||Mainly by Personal Evidence||Mainly by Documentary Evidence|
From the table, we can see that the common law system and the civil law system are the two main legal systems in the contemporary world. These two legal systems involve history, culture, belief stand, social background, etc., and they are quite different in essence and concept.
Civil Law, also known as the European law system, Roman law system, and civil law system. The civil law system and Roman law are in the same line in spirit. In the twelfth century, Justinian’s “Encyclopedia of National Laws” was rediscovered in Italy. Because its legal system was more complete than the customary laws of the European lords at the time, Roman law was imitated on the European continent. The “Renaissance of Roman Law” gradually merged with Christian civilization and commercial civilization and formed the embryonic form of today’s civil law system. This is the origin of the civil law system, so the civil law system is also called the Roman law system. Looking at it today, the content of Justinian’s “Encyclopedia of National Laws” basically belongs to civil law, so the civil law system as the direct successor of Roman law is based on civil law. “Public law” and “private law” are very clearly divided, and both have binding regulations on individual rights and public rights.
Compared with the Anglo-American legal system, another major legal system, its major feature is that it has a systematic civil law system, so the civil law system is also known as the civil law system. The civil law system follows Roman law, has a long tradition of codification, attaches importance to the compilation of codes, has detailed statutory laws, and emphasizes that the codes must be complete so that every detail of each legal category is stipulated in the code. The civil law system advocates logical reasoning based on legal principles, and implements judicial trials based on this, requiring judges to strictly follow legal provisions.
The current legal system of our country is mainly based on Germany and belongs to the continental system. The many characteristics of the continental system can be seen from our legal system. In countries with a civil law system, the sign of the progress and perfection of the law is the promulgation and implementation of a series of new laws. For example, my country’s “Property Law” and other laws have been promulgated in recent years. Because the European law system has the characteristics of systematization and conceptualization in form, it is easy to imitate and transplant, so it is easy to become the target of the later countries such as China and Japan to imitate.
The Common Law System (Common Law) is also known as the Common Law System and the Law of the Sea System. The Anglo-American law system originated in England in the Middle Ages, mainly from the fusion of Anglo-Saxon customary law and Normandy feudal law. After the Conquest of Normandy, Duke William set foot on the land of England. To expand the kingship, he sent justices to various parts of England to deal with farmers. Contradictions with the feudal lord, there are many problems in the process of handling that there is no statutory law to rely on. The judgment depends on the customs and habits of the time. Christian morality also has a great influence on the trial results. This is the origin of the current Anglo-American legal system. With the expansion of the British Empire in the seventeenth to eighteenth centuries, it spread all over the world and is now mainly popular in the Commonwealth countries. The Anglo-American legal system is also called the unwritten legal system because of its origin.
Compared with the civil law system’s emphasis on codes, the common law system “follows precedent” in judicial trial principles, that is, precedents as precedents are legally binding on subsequent cases and become the basic principles for judges in the future. And this case law, which shows legal norms in the form of case precedents, is not recognized by countries that implement the civil law system, and at best has only auxiliary reference value. It seems that the law is gradually accumulated without going through the legislature. Common law is the law of precedent, not the law of enactment. Judges summarize and form a legal system applicable to the entire society based on local customary law, which has the characteristics of adaptability and openness. During the trial, more attention was paid to adopting parties’ progressivism and jury system. The lower courts must abide by the previous precedents of the higher courts. The precedents of judges at the same level are not necessarily binding, but they generally refer to each other.
In countries that practice common law systems, the development of legal systems and theories is essentially driven by case by case. Therefore, when we look at the verdicts in Britain, the United States, and other places, the game between judges, juries and lawyers is very exciting, and often after an unprecedented judgment is produced, it provides a basis for subsequent judgments in the same situation. For example, when we look at the development of the US legal system, we often see iconic cases. For example, in the famous “Brown v. Topeka Education Bureau” case in the United States, from the district court to the Supreme Court, the southern provinces segregation policy was finally found to be unconstitutional. From now on, all judgments similar to racial discrimination and apartheid cases must follow the judgment of the High Court in this case. Thus the apartheid policy in the southern provinces finally became history, and the United States ushered in a great victory for the civil rights movement in history. As the two most important legal systems in the world today, the civil law system and the common law system are not opposed to each other. There are also many exchanges and integrations. The countries marked in gray in the figure above using a mixed legal system. Case law also has reference value in some civil law countries, and maritime law countries like the United States have also begun to actively compile codes to cooperate, rather than relying solely on cases to develop laws. This trend is becoming more and more common in all countries of the world.
- What are the differences between common law system and civil law system?