Common Law and Continental Law: Two Legal Systems - Some Elements of Comparative Constitutional and Administrative Law with Regard to those two Legal Systems

2009 ◽  
pp. 226-257
Author(s):  
Thomas Fleiner
Keyword(s):  
Common Law ◽  
Administrative Law ◽  
Legal Systems

Judicial Oversight of Procedural Fairness and Propriety in Europe: Diversity Within Commonality

2021 ◽  
pp. 339-366
Author(s):  
Giacinto della Cananea
Keyword(s):  
Comparative Analysis ◽  
Common Core ◽  
Common Law ◽  
Civil Law ◽  
Judicial Independence ◽  
Procedural Fairness ◽  
Administrative Law ◽  
Legal Systems ◽  
The Common ◽  
Initial Focus

This chapter explores the common and distinctive elements that emerge from the comparative analysis of legal systems, in terms of commonality and diversity in administrative law. It begins by outlining the main institutional features of the legal systems selected for the comparison, with an initial focus on the idea of a 'divide' between civil law and common law. The two important features of the legal systems examined in this book include judicial independence and judicial specialization. The chapter then discusses the procedural requirements at the heart of the factual analysis. It concludes by reflecting on the relevance and significance of this analysis for the general enquiry concerning the common core of European administrative laws.

Pure or Mixed? The Evolution of Three Grounds of Judicial Review of the Administration in British and Israeli Administrative Law

2013 ◽  
pp. 1-36
Author(s):  
Margit Cohn
Keyword(s):  
United Kingdom ◽  
Common Law ◽  
Civil Law ◽  
Administrative Law ◽  
Public Law ◽  
Legal Systems ◽  
The Public ◽  
The United Kingdom ◽  
Anglo American ◽  
Distinct Features

This article challenges common understandings about the distinct features of the so-called “mixed jurisdictions”. One of the main features found in this group of legal systems, it is argued, is that they are civil-law in nature in the sphere of private law, while their public law sphere is typically Anglo-American. I argue that this may be correct as far as the structural elements of these two branches of law, for example with regard to the court structure; it may also be relevant in the context of the general, overarching values underlying both branches of law. However, as far as the detailed arrangements are concerned, a variety of set-ups reflect different types of mixes and combinations in all legal systems, including “mixed jurisdictions”: innovation, transplantation and adoption of which can be traced inter alia to global crosscutting between these two families of legal systems.This argument is developed through an analysis of the evolution of three grounds of review of the administration-unreasonableness, proportionality and legitimate expectations/ administrative promise-in the United Kingdom, the “ancestor” of the common law family of legal systems, and in Israel, currently considered a mixed jurisdiction. I show that both innovation and reliance on civil law constructs can be found in both systems just as much as common law constructs. The influence of EU law, especially ECtHR jurisprudence, renders the public law of the United Kingdom, to a certain extent, to be more civil-law-like than its so-called daughter system. Whether this mix of patterns is an unavoidable result of the irresolvable tension between exclusionism and openness, both willful and subjected, or matter that is particular to the distinct nature of administrative law and its case-by-case development in common law systems is a matter for further consideration. Clearly, though, legal reality, at least in the field studied in this article, challenges the viability of the distinction between “pure” and “mixed” legal systems.

Legality

2020 ◽  
pp. 880-899
Author(s):  
Paul Craig
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
Fundamental Rights ◽  
Legal Systems ◽  
The Third ◽  
Critical Scrutiny ◽  
Principle Of Legality ◽  
The Way

This chapter is concerned with the concept of legality, and its role in administrative law. Here, six views of the role of legality are examined. The first two views are foundational, albeit in different senses. Thus, the chapter begins with consideration as to how far legality may be conceived as foundational in the sense of being the meta-precept for administrative law doctrine. The third, fourth, and fifth views of the cathedral consider the way in which legality is deployed by way of contradistinction to other administrative law concepts, with implications for the structure of administrative law doctrine and the intensity of review. The respective distinctions are between legality and rationality, legality and the merits, and legality and policy. These dichotomies are explicated and subjected to critical scrutiny. The sixth and final role played by legality is as a distinct head of judicial review, as evidenced by the principle of legality, which exists in some common law legal systems, and is concerned with the way in which legislation that infringes fundamental rights will be interpreted. The principle is analysed, as is the rationale for the ascription of the nomenclature ‘legality’.

The Evolution of a Nation

2011 ◽  
Author(s):  
Daniel Berkowitz ◽  
Karen B. Clay
Keyword(s):  
Political Competition ◽  
Common Law ◽  
Civil Law ◽  
Legal Institutions ◽  
Colonial History ◽  
Legal Systems ◽  
Water Transportation ◽  
Long Run ◽  
Access To Water ◽  
Late Twentieth

Although political and legal institutions are essential to any nation's economic development, the forces that have shaped these institutions are poorly understood. Drawing on rich evidence about the development of the American states from the mid-nineteenth to the late twentieth century, this book documents the mechanisms through which geographical and historical conditions—such as climate, access to water transportation, and early legal systems—impacted political and judicial institutions and economic growth. The book shows how a state's geography and climate influenced whether elites based their wealth in agriculture or trade. States with more occupationally diverse elites in 1860 had greater levels of political competition in their legislature from 1866 to 2000. The book also examines the effects of early legal systems. Because of their colonial history, thirteen states had an operational civil-law legal system prior to statehood. All of these states except Louisiana would later adopt common law. By the late eighteenth century, the two legal systems differed in their balances of power. In civil-law systems, judiciaries were subordinate to legislatures, whereas in common-law systems, the two were more equal. Former civil-law states and common-law states exhibit persistent differences in the structure of their courts, the retention of judges, and judicial budgets. Moreover, changes in court structures, retention procedures, and budgets occur under very different conditions in civil-law and common-law states. This book illustrates how initial geographical and historical conditions can determine the evolution of political and legal institutions and long-run growth.

scholarly journals The Transplant of Trusts in Different Legal Jurisdictions: The Example of China

Global Jurist ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Giulia Terranova
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Original Model ◽  
People’S Republic Of China ◽  
Legal Institution ◽  
Legal Systems ◽  
People's Republic Of China ◽  
Republic Of China ◽  
Trust Law

AbstractLegal transplants are considered a significant factor in the evolution of legal systems. One example of transplant of a legal institution through its prestige is the diffusion of the trust from the English legal system to other common law systems and to many civil law countries. One of these is China that in 2001 enacted the Trust Law of the People’s Republic of China. This paper wants to analyse the trust under the Trust Law and to compare it with the original model in the English legal system, understanding how far or how close it is from the original one.

Liberating Malawi's Administrative Justice Jurisprudence from Its Common Law Shackles

2011 ◽  
Vol 55 (1) ◽  
pp. 105-127 ◽  
Author(s):  
Danwood Mzikenge Chirwa
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
The Common ◽  
The Right ◽  
Administrative Justice

AbstractThe 1994 Malawian Constitution is unique in that it, among other things, recognizes administrative justice as a fundamental right and articulates the notion of constitutional supremacy. This right and the idea of constitutional supremacy have important implications for Malawi's administrative law, which was hitherto based on the common law inherited from Britain. This article highlights the difficulties that Malawian courts have faced in reconciling the right to administrative justice as protected under the new constitution with the common law. In doing so, it offers some insights into what the constitutionalization of administrative justice means for Malawian administrative law. It is argued that the constitution has altered the basis and grounds for judicial review so fundamentally that the Malawian legal system's marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.

scholarly journals PERBANDINGAN SISTEM HUKUM COMMON LAW, CIVIL LAW DAN ISLAMIC LAW DALAM PERSPEKTIF SEJARAH DAN KARAKTERISTIK BERPIKIR

2018 ◽  
Vol 25 (1) ◽  
pp. 98
Author(s):  
Farihan Aulia ◽  
Sholahuddin Al-Fatih
Keyword(s):  
Legal System ◽  
Legal History ◽  
Islamic Law ◽  
Common Law ◽  
Legal Systems ◽  
Legal Tradition ◽  
History Of ◽  
Legal Thinking ◽  
Anglo American ◽  
The Comparative Study

The legal system or commonly referred to as the legal tradition, has a wealth of scientific treasures that can be examined in more depth through a holistic and comprehensive comparative process. Exactly, the comparison of the legal system must accommodate at least three legal systems that are widely used by countries in the world today. The three legal systems are the Continental European legal system, Anglo American and Islamic Law. The comparative study of the three types of legal systems found that the history of the Continental European legal system is divided into 6 phases, while Anglo American legal history began in the feudalistic era of England until it developed into America and continues to be studied until now. Meanwhile, the history of Islamic law is divided into 5 phases, starting from the Phase of the Prophet Muhammad to the Resurrection Phase (19th century until nowadays). In addition to history, the authors find that the Continental European legal system has the characteristic of anti-formalism thinking, while the Anglo American legal thinking characteristic tends to be formalism and is based on a relatively primitive mindset. While the thinking character of Islamic Law is much influenced by the thought of the fuqoha (fiqh experts) in determining the law to solve a problem, so relatively dynamic and moderate.

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