Western Legal System

Topic 1: Introduction to law: The western legal tradition and sources of law

The Western Legal Tradition

Two families of legal system come under the western legal tradition

• common law (adversarial) system

• civil law (inquisitorial) system

- Common law and civil law combine to constitute the western legal tradition. However neither system exists today in pure form. All relevant legal systems in the western world are hybridised to some degree, drawing on either both these systems or other legal families.

- Both the systems are strongly influenced by precepts of Christianity and Roman law. Thus, while there are significant differences between them, they share common roots

- Perhaps more importantly, both models share the same aims and overall objective (the establishment of systems for the just resolution of disputes and the maintenance of social order) and share the ideology that law has a central role to play in all social organisation.

- Essentially both the common law and civil law systems have parallel functions in their respective societies. However they differ fundamentally in the means employed to fulfil these functions (Refer ALRC, pgs 10-11 of supp reader).

- The administration of the western legal tradition is (in both common law and civil law systems) entrusted to a specific core of people who engage in specialist training which equips them for the role.

THE ROMAN LEGAL CODE

- influenced by Greek and Christian legal principles

- various parts of the code were collected and organised by Emperor Justinian into texts (Corpus Juris Civilis)

- practice of Roman law ceased in the Dark Ages disoder following the collapse of the Roman Empire. Written records were lost.

- missing Justinian texts (from late C11) containing the Roman Legal Code were found in Italy. These were studied intensively be scholars – over time their precepts and principles became the basis for contemporary civil...