English for Social Scientists

Grados en Ciencia Política y de la Administración, Sociología, Economía y Administración y Dirección de Empresas

UNIT 10

Differences between the Spanish and Anglo-American Legal Systems

• LANGUAGE STUDY

- Complex clauses. Clauses of contrast, reason and comparison.

- Relative clauses.

• ACTIVITIES

• What I have learnt

Part one: Differences between the Spanish and Anglo-American Legal Systems

In this lesson, we will be introduced to the sources of both Spanish and Anglo American
legal traditions. We will learn something about how both legal systems still coexist in the
Western World.

While in Europe Common Law originated in Britain in the 11th century, and is still in use in
Britain, Ireland, Scotland and other countries such as India, the Roman tradition of Civil
Law has been the main source in countries such as Italy, France, Spain, etc.

COMMON LAW SYSTEMS

Common law is law developed by judges through decisions of courts and/or tribunals. It is
very pragmatic: the law can be developed on a case-by-case basis, and it is not necessary to
wait for Parliament to pass an Act.

In this system, Court decisions are considered law (case law) and have the same force as
any law passed by Parliament (statutory law).

Leading cases set a precedent which is binding, that is to say, obligatory and the precedent
binds future decision on the principle of stare decisis. That is to say that similar cases should
be decided in such a way that they reach similar results and it would be unfair to treat similar
facts differently on different occasions.

Also, the decisions by appelate courts are binding on lower courts and future decisions of
the same appellate court, but decisions of lower courts are considered persuasive authority.

(Adapted from http://en.wikipedia.org/wiki/Common_law)

Margarita Goded Rambaud and Lourdes Pomposo Yáñez, revised 1

English for Social Scientists
Grados en Ciencia Política y de la Administración, Sociología, Economía y Administración y Dirección de Empresas

UNIT 10

CIVIL LAW SYSTEMS

Civil law systems are also called “code” systems or “codified” systems. This concept is
denominated as “write” law that equals to “codify” law, and it is applied as such.

In addition to a written constitution, there are also specific codes (e.g., civil code,
criminal code, commercial code, etc.).

(Adapted from http://en.wikipedia.org/wiki/Civil_law_/28legal_system/29)

READ THE FOLLOWING TEXTS IN SIMPLE EVERYDAY ENGLISH.

1. http://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html

Most nations today follow one of two major legal traditions: common law or civil law.
The common law tradition emerged in England during the Middle Ages and was applied
within British colonies across continents. The civil law tradition developed in continental
Europe at the same time and was applied in the colonies of European imperial powers such
as Spain and Portugal. Civil law was also adopted in the nineteenth and twentieth
centuries by countries formerly possessing distinctive legal traditions, such as Russia and
Japan, that sought to reform their legal systems to gain economic and political power
comparable to that of Western European nation-states.

Americans may find common law more familiar than civil law. Even though England had
many profound cultural ties to the rest of Europe in the Middle Ages, its legal tradition
developed differently from that of the continent for a number of historical reasons. One of the
most fundamental ways in which they diverged was in the establishment of judicial decisions
as the basis of common law and legislative decisions as the basis of civil law.

Common law has certain particular characteristics. For example, common law is generally
uncodified. This means that there is no comprehensive compilation of legal rules and statutes.
It is largely based on precedent, meaning the judicial decisions that have already been made in
similar cases. These precedents are maintained over time through the records of the courts as
well as historically documented in collections of case law known as yearbooks and reports. The
precedents to be applied in the decision of each new case are determined by the presiding
judge. As a result, judges have an enormous role in shaping the American and British law.
Common law functions as an adversarial system, a contest between two opposing parties
before a judge who moderates. A jury of ordinary people without legal training decides on the
facts of the case. The judge then determines the appropriate sentence based on the jury’s
verdict.

Margarita Goded Rambaud and Lourdes Pomposo Yáñez, revised 2

English for Social Scientists
Grados en Ciencia Política y de la Administración, Sociología, Economía y Administración y Dirección de Empresas

UNIT 10

Civil Law, in contrast, is codified. Countries with civil law systems have
comprehensive, continuously updated legal codes that specify all matters capable of being
brought before a court, the applicable procedure, and the appropriate punishment for each
offense. Such codes distinguish between different categories of law. Substantive law
establishes which acts are subject to criminal or civil prosecution and procedural law
establishes how to determine whether a particular action constitutes a criminal act,
and penal law establishes the appropriate penalty. In a civil law system, the judge’s role
is to establish the facts of the case and to apply the provisions of the applicable code.
Though the judge often brings the formal charges, investigates the matter, and decides on
the case, he or she works within a framework established by a comprehensive, codified set of
laws. The judge’s decision is consequently less crucial in shaping civil law than the decisions
of legislators and legal scholars who draft and interpret the codes.

The term civil law derives from the Latin ius civile, the law applicable to all Roman cives or
citizens. Its origins and model are to be found in the monumental compilation of Roman
law commissioned by the Emperor Justinian in the sixth century. While this compilation was
lost to the West within decades of its creation, it was rediscovered and made the basis
for legal instruction in eleventh-century Italy. In the sixteenth century, it came to be known
as Corpus iuris civilis. Succeeding generations of legal scholars throughout Europe adapted the
principles of ancient Roman law in the Corpus iuris civilis to contemporary needs. Medieval
scholars of Catholic church law, or canon law, were also influenced by Roman law
scholarship as they compiled existing religious legal sources into their own
comprehensive system of law and governance for the Church, an institution central to
medieval culture, politics, and higher learning. By the late Middle Ages, these two laws,
civil and canon, were taught at most universities and formed the basis of a shared
body of legal thought common to most of Europe. The birth and evolution of the
medieval civil law tradition based on Roman law was thus integral to European legal
development. It offered a store of legal principles and rules invested with the authority of
ancient Rome and centuries of distinguished jurists, and it held out the possibility of a
comprehensive legal code providing substantive and procedural law for all situations.

As civil law came into practice throughout Europe, the role of local custom as a source
of law became increasingly important—particularly as growing European states sought to
unify and organize their individual legal systems. Throughout the early modern period, this
desire generated scholarly attempts to systematize scattered, disparate legal provisions
and local customary laws and bring them into harmony with rational principles of civil law
and natural law. Emblematic of these attempts is the Dutch jurist Hugo Grotius’ 1631
work, Introduction to Dutch Jurisprudence, which synthesized Roman law and Dutch
customary law into a cohesive whole. In the eighteenth century, the reforming aspirations
of Enlightenment rulers aligned with jurists’ desire to rationalize the law to produce
comprehensive, systematic legal codes including Austria’s 1786 Code of Joseph II and
Complete Civil Code of 1811, Prussia’s Complete Territorial Code of 1794, and France’s
Civil Code (known as the Napoleonic Code) of 1804. Such codes, shaped by the Roman
law tradition, are the models of today’s civil law systems.

Margarita Goded Rambaud and Lourdes Pomposo Yáñez, revised 3

English for Social Scientists
Grados en Ciencia Política y de la Administración, Sociología, Economía y Administración y Dirección de Empresas

UNIT 10

2. Common law

Source: http://en.wikipedia.org/wiki/Common_law

Common law, also known as case law or precedent, is law developed by judges
through decisions of courts and similar tribunals, as opposed to statutes adopted
through the legislative process or regulations issued by the executive branch.

A "common law system" is a legal system that gives great precedential weight to
common law, on the principle that it is unfair to treat similar facts differently on different
occasions. The body of precedent is called, "common law" and it binds future decisions. In
cases where the parties disagree on what the law is, a common law court looks to past
precedential decisions of relevant courts. If a similar dispute has been resolved in the past,
the court is bound to follow the reasoning used in the prior decision (this principle is
known as stare decisis). If, however, the court finds that the current dispute is
fundamentally distinct from all previous cases (called a "matter of first impression"), judges
have the authority and duty to make law by creating a precedent. After that, the new
decision becomes precedent and will bind future courts.

In practice, common law systems are considerably more complicated than the
simplified system described above. The decisions of a court are binding only in a particular
jurisdiction, and even within a given jurisdiction, some courts have more power than others.
For example, in most jurisdictions, decisions by appellate courts are binding on lower
courts in the same jurisdiction and on future decisions of the same appellate court, but
decisions of lower courts are only non-binding persuasive authority. Interactions between
common law, constitutional law, statutory law and regulatory law also give rise to
considerable complexity. However, stare decisis, the principle that similar cases should be
decided according to consistent, principled rules so that they will reach similar results, lies
at the heart of all common law systems.

One third of the world's population (approximately 2.3 billion people) live in common
law jurisdictions or systems mixed with civil law. A particular case of common law
originated in England it in the Middle Ages. Countries that trace their legal heritage to
England as former colonies of the British Empire, include India, the United States, Pakistan,
Nigeria, Bangladesh, Canada, with the exception of Québec, where a mix of civil law (on the
provincial level) and common law -mostly on the federal level- is used), Malaysia, Ghana,
Australia, Sri Lanka, Hong Kong, Singapore, Myanmar, Ireland, New Zealand, Jamaica,
Trinidad and Tobago, Cyprus, Barbados, South Africa, Zimbabwe, Cameroon, Namibia,
Botswana, Guyana and Israel.

Margarita Goded Rambaud and Lourdes Pomposo Yáñez, revised 4

English for Social Scientists
Grados en Ciencia Política y de la Administración, Sociología, Economía y Administración y Dirección de Empresas

UNIT 10

3. Civil law:

Source: http://en.wikipedia.org/wiki/Civil_law_(legal_system)

Civil law (or civilian law) is a legal system originating in Western Europe,
intellectualized within the framework of late Roman law, and whose most prevalent
feature is that its core principles are codified into a referable system that serves as the
primary source of law. This can be contrasted with common law systems whose intellectual
framework comes from the judge-made decisional law that gives precedential authority to
prior court decisions on the principle that it is unfair to treat similar facts differently on
different occasions (doctrine of judicial precedent).

Historically, civil law is the group of legal ideas and systems ultimately derived from
the Code of Justinian but heavily overlaid by Germanic, canon-law, feudal, and local
practices, as well as doctrinal strains such as natural law, codification, and legislative
positivism.

Conceptually, civil law proceeds from abstractions, formulates general principles,

and distinguishes substantive rules from procedural rules. It holds case law to be secondary
and subordinate to statutory law, and the court system is usually inquisitorial,
unbound by precedent and composed of specially-trained, functionary judicial officers
with limited authority to interpret the law. Jury trials are not used, although in some cases,
benches may be sat by a mixed panel of lay magistrates and career judges.

4. Common Law System

Source: http://ppp.worldbank.org/public-private-partnership/legislation-regulation/
framework-assessment/legal-systems/common-vs-civil-law

Countries following a common law system are typically those that were former British colonies
or protectorates, including the United States.

Features of a common law system include:

• There is not always a written constitution or codified laws;

• Judicial decisions are binding – decisions of the highest court can only be overturned
by that same court or through legislation;

• Extensive freedom of contract - few provisions are implied into the contract by law
(although provisions seeking to protect private consumers may be implied);

• Generally, everything is permitted that is not expressly prohibited by law.

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English for Social Scientists
Grados en Ciencia Política y de la Administración, Sociología, Economía y Administración y Dirección de Empresas

UNIT 10

There are few provisions implied into a contract under the common law system – it is,
therefore, important to set out ALL the terms governing the relationship between the
parties to a contract in the contract itself. This will often result in a contract being longer than
one in a civil law country.

Civil Law System

Countries following a civil law system are typically those that were former French,
Dutch, German, Spanish or Portuguese colonies or protectorates, including much of Central
and South America. Also, most of the Central and Eastern European and East Asian countries
follow a civil law structure.

The civil law system is a codified system of law. It takes its origins from Roman
law. Features of a civil law system include:

• There is generally a written constitution based on specific codes (e.g., civil code, codes
covering corporate law, administrative law, tax law and constitutional law) enshrining basic
rights and duties; administrative law is however usually less codified and administrative court
judges tend to behave more like common law judges;

• Only legislative enactments are considered binding for all. There is little scope for
judge-made law in civil, criminal and commercial courts, although in practice judges tend to
follow previous judicial decisions; consitutional and administrative courts can nullify laws and
regulations and their decisions in such cases are binding for all.

• In some civil law systems, e.g., Germany, writings of legal scholars have significant
influence on the courts;

• Courts specific to the underlying codes – there are therefore usually separate
constitutional court, administrative court and civil court systems that opine on consistency of
legislation and administrative acts with and interpret that specific code;

• Less freedom of contract - many provisions are implied into the contract by law and
parties cannot contract out of certain provisions.

A civil law system is generally more prescriptive than a common law system. However, a
government will still need to consider whether specific legislation is required to either limit the
scope of a certain restriction to allow a successful infrastructure project or may require specific
legislation for a sector.

Margarita Goded Rambaud and Lourdes Pomposo Yáñez, revised 6

English for Social Scientists
Grados en Ciencia Política y de la Administración, Sociología, Economía y Administración y Dirección de Empresas

UNIT 10

There are a number of provisions implied into a contract under the civil law system –
less importance is generally placed on setting out ALL the terms governing the
relationship between the parties to a contract in the contract itself as inadequacies or
ambiguities can be remedied or resolved by operation of law. This will often result in a
contract being shorter than one in a common law country.

In the following chart, you can find the main differences between both law systems
regarding a series of features. The compared feature is listed in the second column.

Common Law Feature Civil Law

Not always Written constitution Always
Binding Judicial decisions Not binding on 3rd parties; however, administrative
and constitutional court decisions on laws and
regulations binding on all
Little influence Writings of legal scholars Significant influence in some civil law jurisdictions
Extensive – only a few Freedom of contract More limited – a number of provisions implied by
provisions implied by law law into contractual relationship
into contractual relationship
In most cases, contractual Court system applicable Most PPP arrangements (e.g. concessions) are seen
relationship is subject to to PPP projects as relating to a public service and subject to public
private law and courts that administrative law administered by administrative
deal with these issues courts

ACTIVITIES

• Write a brief summary of the origin of both legal traditions.

• Go again to the text above and identify three main differences between both systems.
• Articulate your comparison using the following constructions:
o On the one hand… on the other
o While….

Part two: Use of language

Margarita Goded Rambaud and Lourdes Pomposo Yáñez, revised 7

English for Social Scientists
Grados en Ciencia Política y de la Administración, Sociología, Economía y Administración y Dirección de Empresas

UNIT 10

In this section, we will learn how to understand and write large comparative paragraphs
illustrating these differences.

Comparatives
You can describe something by saying that it has more of a quality than something else. To
do this you can use comparative adjectives. Comparatives normally consist of the usual
form of the adjective with either '-er' added to the end, as in 'harder' and the word 'more'
placed in front, as in 'more interesting.'

The adjective 'good' and 'bad' have the irregular comparative forms 'better' or ‘worse'.

• Comparatives can be used as modifiers in front of a noun. For example,

Demands for a bigger West German defence budget were refused.

A harder mattress often helps with back injuries.

• Note that comparatives can also be used as modifiers in front of 'one'. As in:

Understanding of this reality provokes a better one.

Comparatives can also be used as complements after a linking verb.

• Comparatives can also be used after a linking verb such as in:

The ball soaked up water and became heavier.

His breath became quieter.

We need to be more flexible.

• Comparatives are often followed by 'than' when you want to specify

what the other thing involved in the comparison is. You say exactly what

are comparing by using one of a number of structures after 'than' as in:

Charlie was more honest than his predecessor.

...and area bigger than Great Britain.

• 'More' is sometimes used in front of a whole noun group to indicate that

something has more of the qualities of one thing than another or is one
thing rather than being another.

o Music is more a way of life than an interest.

o This is more a war movie than a western.

Margarita Goded Rambaud and Lourdes Pomposo Yáñez, revised 8

English for Social Scientists
Grados en Ciencia Política y de la Administración, Sociología, Economía y Administración y Dirección de Empresas

UNIT 10

• The form which is used to indicate that something does not have as
much of a quality as something else is 'less' followed by an adjective.

The answer had been less truthful than his own.

• You can al so use 'less' and an adjective to say that something does not have as much of
a quality as it had before.

As the days went by, Sita became less anxious.

• Note that 'less than' is used before adjectives like an emphatic negative.

lt would have been less than fair.

(Adapted from Collins Cobuild English Grammar (1990: 84-85). London: Longman.)

In the web grammar reference below you can find the basics of relative clauses. You can also
find the eight different types of adverbial clauses, which are introduced by a conjunction as
well as linking structures.

As a brief guide to the words used with these subordinate clauses, see the following chart
adapted from the same sources.

Type of clause Usual conjunction

time clauses when, before, after, since, while, as, until
conditional clauses if, unless
purpose clauses in order to, so that
reason clauses because, since, as
result clauses so that
concessive clauses although, though, while
place clauses where wherever
clauses of manner as, like, the way

References:

COLLINS COBUILD English Grammar (1990). London: Longman.

Margarita Goded Rambaud y Lourdes Pomposo Yáñez, revised 9