Langues appliquées - Anglais : Economie, gestion, droit, AES - 4e - 175

common law and civil law

By the late Middle Ages, these two laws, civil and canon, were taught at most universities and formed
the basis of a shared body of legal thought common to most of Europe. The birth and evolution of the
medieval civil law tradition based on Roman law was thus integral to European legal development. It
offered a store of legal principles and rules invested with the authority of ancient Rome and centuries of
distinguished jurists, and it held out the possibility of a comprehensive legal code providing substantive
and procedural law for all situations.
English common law emerged from the changing and centralizing powers of the king during the
Middle Ages. After the Norman Conquest in 1066, medieval kings began to consolidate power and
establish new institutions of royal authority and justice. New forms of legal action established by the
Crown functioned through a system of writs, or royal orders, each of which provided a specific remedy
for a specific wrong. The system of writs became so highly formalized that the laws the courts could
apply based on this system often were too rigid to adequately achieve justice. In these cases, a further
appeal to justice would have to be made directly to the king. This difficulty gave birth to a new kind
of court, the court of equity, also known as the Court of Chancery because it was the court of the Lord
Chancellor. Courts of equity were authorized to apply principles of equity based on many sources
(such as Roman law and natural law) to achieve a just outcome. Courts of law and courts of equity
thus functioned separately until the writ system was abolished in the mid-nineteenth century. Even
today, however, some U.S. states maintain separate courts of equity. Likewise, certain kinds of writs,
such as warrants and subpoenas, still exist in the modern practice of common law.
In the Middle Ages, common law in England coexisted, as civil law did in other countries, with
other systems of law. Church courts applied canon law, urban and rural courts applied local customary
law, Chancery and maritime courts applied Roman law. Only in the seventeenth century did common
law triumph over the other laws, when Parliament established a permanent check on the power of the
English king and claimed the right to define the common law and declare other laws subsidiary to it.
This evolution of a national legal culture in England was contemporaneous with the development of
national legal systems in civil law countries during the early modern period.
The American legal system remains firmly within the common law tradition brought to the North
American colonies from England. Yet traces of the civil law tradition may be found within state legal
traditions across the United States. Most prominent is the example of Louisiana, where state law is
based on civil law as a result of Louisiana's history as a French and Spanish territory prior to its
purchase from France in 1803.
Excerpt from: Dr Julianne L. Gilland, The Common Law and Civil Law Traditions, 2010,
Robbins Collection, University of California, Berkeley, School of Law.
https://www.law.berkeley.edu/wp-content/uploads/2017/11/ CommonLawCivilLawTraditions.pdf

https://www.law.berkeley.edu/wp-content/uploads/2017/11/

Table des matières de la publication Langues appliquées - Anglais : Economie, gestion, droit, AES - 4e