legal traditions in American law. Common law. Roman law, etc…. compare and contrast the 4 legal traditions
Early influences on American law: English, common, civil, and Roman law traditions
America was originally a British colony, so it should come as little surprise that the predominant influence upon American law is that of English law, with its system of Parliament and divided governance. England’s balance of power between the king and a democratically elected legislature obviously influenced the Founding Fathers, as did Great Britain’s early establishment of an independent judiciary. State and federal taxation has its roots in British law’s taxation of various independent provinces. William the Conqueror as early as 1066 created a Domesday Survey, that recorded the amount and value of property held by all persons in England “for the purpose of assessing taxes against the owners” (English law, 2008, Law Library).
Trial by jury originates in Anglo-Saxon times through a practice known as compurgation “in which accused persons might clear themselves of an alleged wrongdoing by taking a sworn oath denying the claim made against them, and corroborating the denial by the sworn oaths of twelve other persons, usually neighbors or relatives” (English law, 2008, Law library). Trial by a jury of one’s peers supplanted the earlier, more barbaric and of trial-by-ordeal and trial-by-combat, in which the accused person would be subjected to a trial such as dunking in water and God would decide the accused person’s innocence or guilt. Fairness, democracy, and impartiality — even secularity — were early characteristics of English law.
The establishment of the Magna Carta which defined the rights and legal obligations of the church, nobles, and king was also influential on American law. No one party could infringe upon the rights of the others, and English kings who tried to grow too powerful met with opposition, rebellion and death. For example, in 1649, King Charles I was tried, convicted, and executed for subverting Parliament (English law, 2008, Law library). Another type of law derived from Britain that influenced the Founding Fathers was that of common law. Common law, as opposed to formal, written English documents like the Magna Carta is “the ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts” (Common law, 2008, Law Library). In practical terms, this means that custom and past interpretations guide current judicial interpretation, not merely the ‘letter of the law.’ “Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how the law applies. Common-law judges rely on their predecessors’ decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law” (Common law, 2008, law library). The law evolves with custom and interpretation, rather than remains fixed in stone.
Common law may be contrasted with civil law, which predominates in France and has had less influence on the law of the United States, except in Louisiana. Louisiana judges, unlike their common-law counterparts, are not bound to consider judicial precedent first, but may do so as an option. France exported the system of civil law to America when it established Louisiana as a colony in 1712. Even today, “the first article of the Louisiana Civil Code reads: ‘The sources of law are legislation and custom’ (LA C.C. Art. 1). This means that judges in Louisiana are obligated to look first to written laws for guidance in reaching their decisions. If no statute directly governs the dispute, judges may base their decisions on established custom” (Civil law, 2008, the Law Library). Also, unlike common law appellate courts, Louisiana justices operating under civil law may review findings of fact as well as findings of law and overturn the decisions of lower courts because they believe a defendant to be innocent, not merely because there was a legal error.
Civil law is heavily influenced by Roman law. However, English law draws upon some Roman laws, such as its definition of forgery, libel and trespass. It was also Roman law that first established the division between written and unwritten law. Finally, even though English, common-law tradition may seem to predominate in the U.S., it is worth noting that no tradition is absolute: “Commentators, while noting the differences between common law and civil law, which is based on Roman law, also point out that these differences can be overemphasized. Common-law countries, like the United States, enact statutes and even comprehensive codes, such as the Uniform Commercial Code, while civil-law countries have laws that have been developed by the courts and not enacted through legislation. Roman law itself contained these conflicting impulses of codification and judicial interpretation” (Roman law, 2008, Law Library).
Civil law. (2008). The Law Library. Retrieved 8 Nov 2008 at http://law.jrank..html
Common law. (2008). The Law Library. Retrieved 8 Nov 2008 at http://law.jrank..html
English law. (2008). The Law Library. Retrieved 8 Nov 2008 at http://law.jrank.org/pages/6486/English-Law.html
Roman law. (2008). The Law Library. Retrieved 8 Nov 2008 at http://law.jrank.org/pages/9916/Roman-Law.html
Traditions of law