Common Law verses Civil Law

It is interesting to note that Australia has operated a judicial system which is known as Common Law, originated from the United Kingdom. Another system in the West, known as the Civic Law, originated since the Roman days in continental Europe, later added and modified by the Napoleonic Code.

Common Law started in Medieval England through incorporating local customs from the countryside, determining what is common to them all, and institutionalizing and elevating them to the higher national court in London. Consequently, courts established principles and rules, and were bound by precedents of preceding cases, especially those from a higher court.

Why I say this is interesting is that this scenario parallels the ancient rivalry between the Pharisees and Sadducees of the old Judaic system. The Pharisees interpreted the Torah with the help of the Oral Law, or precedents. The Sadducees, on the other hand, discarded all precedents and interpreted the Torah as it is.

Their most passionate argument is over what the phase “beyn ha’arbayim” means for the observance of the Passover, which is to be observed on the Fourteenth of Nisan. Translated loosely, it means “between the evenings”. To summarize their long argument, the Sadducees interpreted it to mean the twilight just before sunset on the Fourteenth. The Pharisees, with their traditions and oral code, interpreted it to mean the twilight period leading toward the Fifteenth.

Much like the enmities between the Protestants and Catholics or the Sunnis and Shiites, blood were shed between these two religious branches over such differences. But luckily, no European countries to my knowledge had gone to war over the Common Law or Civil Law system rivalry.

Another interesting to note: the High Court in Australia has defined that a person is an “alien” unless he or she is an Australian citizen. It would be interesting if the same case is held in a Civil Law system and the judge didn’t say something like an “alien” doesn’t exist, but only in fantasy of a creepy creature from outer space that you see only in horror movies! lol

~ by Joel Huan on February 16, 2012.

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