Sources of Modern Law

Today's legal systems have had a slow and complex evolution. Most contemporary law is derived from the two great legal traditions of Western Europe, the common law of England and the law of continental Europe. A common-law legal system was adopted by many Commonwealth¹ countries and most of the United States. The other legal tradition spread to Latin America and many countries in Asia and Africa.

Historically common law means law common to England and Wales as distinct from local customs. In the twelfth century England King Henry II increased his own power and reduced the power of the local courts by opening the King’s Court. The law that developed from the King’s Court decisions was superior to local laws and became common to the entire realm.

Common law is administered and developed by courts. Decisions of courts in previous cases are considered as a source of law. An earlier decision is a precedent which influences or binds courts in later similar cases. Subsequent courts will follow precedents when they determine analogous issues. Besides the records of cases the law is also found in statutes. But even statutes are often interpreted by the courts and these interpretations become new precedents.

Another important feature of the common law tradition is equity. The ordinary meaning of the word is justice or fairness, but it also covers a system of law developed in England and other countries. Actually the purpose of equity was to supplement the existing common-law rules when they were inadequate or unfair. The common law and Equity courts are now merged in most jurisdictions.

On the Continent² scholars played a central role in the law’s development. They commented on and expanded the laws of ancient Rome, that is why continental law is sometimes known as Roman law. Continental law is also known as codified law because it is organized into codes which are the primary source of law. Great national codifications of laws, such as the Code of Napoleon of 1804, and the German Civil Code were exported to many countries outside Europe. They were applied in different ways or adapted to local conditions.

The distinguishing characteristics of these two systems lie in the source of law and the procedure used in the courts. However, the two systems are not quite divergent as they borrow from each other. Continental-law courts pay more respect to precedent than in the past, while common-law countries, such as the United States have enacted uniform legal codes. In order to understand why a particular country has a particular legal system it is necessary to look at its history, political structure and social values.

Notes:

¹ Commonwealth – Содружество (межгосударственное объединение Великобритании и большинства бывших английских доминионов и колоний).

² Continent – Европейский материк (в противопоставление Британским островам).

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