What are the advantages/drawbacks of either system? Is one considered more “fair” than the other?
In: Other
They are functionally extremely similar nowadays. The difference is how they were developed and a little bit of the underlying mechanisms.
English common law is built upon precedence. You’re free to do whatever you want, but then some things aren’t allowed. As judges travel the English countryside interpreting, applying, developing, laws all their thoughts and decisions get recorded for future judges to also follow. It builds the body of law from the ground up.
Napoleonic Civil law works top down instead. All the laws and how to use them are “perfectly” codified in one giant document that says what you are and aren’t allowed to do.
I suppose one could argue common law is “freer” since it just kind of fills in around the edges of limiting people while civil law is a more rigid code that is imposed? I dunno.
As an example of them in action take helping someone who is choking by doing abdominal thrusts. In common law jurisdictions you have no duty to help. If you do help you are making that choice and are therefore opening yourself up to liability. Therefore there is a Good Samaritan Law that protects you so long as you were trying to help and took the actions of a reasonable person. In Civil Law you do have a duty to help if you can do so safely, and since this is imposed on you by the law and not a choice you’re making you can’t be liable for doing your best so there is no need for a Good Samaritan Law. Pretty much the same outcome though.
There also are situations where you can have a duty imposed on you in Common Law Jurisdictions. Mandatory reporting of suspected child abuse in a lot of places nowadays. Maritime Law you often have a duty to lend assistance to stricken vessels. And civil law’s code still needs to be interpreted to some extent. But yeah common law lots of judges figure it out on the fly and slowly build up, while civil law it’s all figured out and laid out in advance.
Latest Answers