Common law and equity are legal systems whose sources are the decisions of judges in cases. In addition, each system will have a legislature that adopts new laws and statutes. The relationship between laws and court decisions can be complex. In some jurisdictions, these laws may override judicial decisions or codify the subject matter covered by several contradictory or ambiguous decisions. In some jurisdictions, judicial decisions may decide whether the constitution of the court permits the enactment of a particular law or provision of law, or what meaning is contained in the statutory provisions. Common law developed in England, influenced by Anglo-Saxon law and, to a much lesser extent, by the Norman conquest of England, which introduced legal concepts from Norman law, which in turn has its origins in Salic law. The common law was later inherited by the Commonwealth of Nations, and almost all former colonies of the British Empire adopted it (Malta is an exception). The doctrine of stare decisis, also known as jurisdiction or precedent of the courts, is the main difference with codified civil law systems. The first group includes countries whose “mixed” system is influenced by both civil and common law. The old uncodified civil law of Holland is the basis of the Roman-Dutch law of South Africa, Zambia, Namibia, Lesotho, Swaziland, Botswana and Sri Lanka; it is characterized by a rich legal literature dating back to Hugo Grotius (de Groot) in the 17th century. But their long contacts with Britain mean that their public law and legal proceedings owe much to the common law.
The level or hierarchy of courts largely defines the extent to which a decision of one court has binding effect on another court. The federal court system, for example, is based on a three-tier structure in which the United States District Courts are the courts at the process level; The United States Court of Appeals is the trial court. and the U.S. Supreme Court is the final arbiter of the law. A civil law system is generally more prescriptive than a common law. However, a government has yet to determine whether specific legislation is needed to limit the scope of a particular restriction in order to enable the success of an infrastructure project, or whether specific legislation is needed for a sector. For more information, see Legislation and Regulation and Organizing Government to Think PPP. Louisiana private law is primarily a Napoleonic system.
Louisiana is the only U.S. state based in part on French and Spanish law and ultimately on Roman law, as opposed to English common law. [22] In Louisiana, private law has been codified in the Louisiana Civil Code. Current Louisiana law has moved considerably closer to U.S. law, including public law, the judicial system, and the adoption of the Uniform Commercial Code (with the exception of section 2) and certain legal instruments of U.S. common law. [23] In fact, any innovation, whether private or public, is clearly customary. [ref. needed] Quebec law, whose private law is also of French civil origin, has developed along the same lines and, in the same way as Louisiana, has adapted to public law and the judicial system of Canadian common law.
In contrast, Quebec private law has generated innovations mainly from civil sources. To a lesser extent, other states that were once part of the Spanish Empire, such as Texas and California, also incorporated aspects of Spanish civil law into their legal systems, such as communal property. Puerto Rico`s legal system shares similarities with Louisiana`s: a civil code whose interpretations are based on both the civil and common law systems. Since the Civil Code of Puerto Rico is based on the Spanish Civil Code of 1889, the available jurisprudence is based on the age of the code and, in many cases, its outdatedness. Common law systems provide greater flexibility in providing different types of collateral for assets – an important feature of commercially financed PPP agreements such as BOTs. They also have the concept of trusts, which allow collateral interests of a trustee to be held for lenders in a syndicated loan situation without the need to formally transfer or re-register collateral interests on behalf of new lenders. Civil law does not know such a concept, so security rights usually have to be re-registered in the name of the new lender (with additional registration fees and notary fees). The France is in the process of putting in place a trust law that will solve a number of these problems. However, in OHADA countries, deposits involving a notary public are necessary to formalize securities. In theory, codes designed in the civil law system should go beyond the compilation of individual laws and instead enshrine the law in a coherent and comprehensive legal act, sometimes initiating major reforms or starting from scratch. [15] In this respect, civil codes are closer to the Reformulations of the Law, the Uniform Commercial Code (European-inspired) and the Model Penal Code in the United States. In the United States, U.S.
states began codifying the New York Field Code of 1850 (which established the rules of civil procedure and was modeled after European and Louisiana codes). [16] Other examples include the California Codes (1872) and Revised Federal Statutes (1874) and the current United States Code (1926), which are closer to statute books than systematic legal records similar to civil law codes. However, codification is by no means a defining feature of a civil law system. For example, the laws governing the civil law systems of Sweden and other Nordic countries, as well as the Romano-Dutch lands, are not summarized in broader and more extensive codes such as those contained in French and German law. [19] For a partial list of common law and civil law countries, see The Legal Systems of the World on Wikipedia It is also important to note that some forms of infrastructure projects in civil law jurisdictions are referred to by clearly defined legal terms. Concessions and leasing have a certain technical meaning and structure that may not be understood or applied in a common law country. Caution should therefore be exercised in the flexible application of these terms. This is explained in more detail in the framework of the agreements. There are important differences between a law and a code. [4] The most distinctive features of civilian systems are their legal systems, with concise and widely applicable texts that generally avoid factual scenarios. [5] [4] The short articles of a civil code deal with generalities and contrast with ordinary laws, which are often very long and very detailed.
[4] In some civil law systems, for example in Germany, the writings of jurists have a considerable influence on the courts; Private law defines who is considered to have legal capacity and deals with their legal capacity (for the protection of the very young or mentally ill). These natural persons may create other “artificial” legal entities such as associations, foundations and companies. Today, there are only a few countries whose legal system is exclusively religious. On the other hand, a large number of countries have secular systems, and this characteristic can be integrated into their legal structure, as in the French and Russian constitutions of 1958 or the very first words of the First Amendment of the US Constitution: “Congress shall not adopt a law concerning a religious institution”. Address the business side of your legal activities with solutions to manage, track, and analyze business, finance, critical processes, relationships, and deliverables. Second, the federal judicial system is based on a system of “jurisdiction,” that is, the geographical distribution of courts at certain levels. For example, while there is only one Supreme Court, the Court of Appeal is divided into 13 counties and there are 94 district courts. In addition, each state judicial system has its own “jurisdiction”. As already mentioned, the jurisdiction in which a case has been raised determines which judicial decisions constitute binding precedents. In civil law systems where codes exist, the main source of law is the Code, a systematic collection of interrelated articles[8] arranged by subject in a predetermined order.
[9] The codes explain the principles of law, rights and prerogatives and the operation of basic legal mechanisms. The purpose of codification is to provide all citizens with morals and a written compendium of the laws that apply to them and that judges must follow. Legal texts are laws enacted by a legislator, although they are usually much longer than other laws. The Code does not contain a collection of laws or a catalogue of case law, but general principles as legal norms. [8] Other important legal systems in the world include common law, Islamic law, halacha and canon law. The Japanese Civil Code was considered a mixture of about 60% of the German Civil Code and about 30% of the French Civil Code, as well as 8% of Japanese common law and 2% of English law. [25] The Code contains the ultra vires doctrine and a precedent of Hadley v. Baxendale of the English common law system.
