If the Civil Code says that you need to do X , you need to do X. There is no room for making analogical arguments, such as since doing Y would have the same result as doing X , it should be okay — and perfectly legal — to do Y rather than X. You might as well stop the analysis, and get ready to follow the letter of the law exactly , even if you can think of a hundred different and perhaps better ways to accomplish the same thing.
The benefit of a common law system is that you can be confident of what will happen in your case if a similar case has been heard before. The drawback is that if you have an unusual case, there is nothing to stop a judge creating a new law and applying it to your case. The benefit of a civil law system is that you can only be judged by the laws which were actually written down in front of you at the time.
The drawback is that even if previous cases show you should win your case, there is no guarantee a judge will interpret the code in the same way on your case. Although the distinction between the two systems is a basic tenet of international law, their different legal approaches should be factored into every major international business decision that is made. Your email address will not be published.
Law and Politics
For example, the federal Fair Labor Standards Act forbid the use of oppressive child labor and established a minimum pay wage and overtime pay rules. A treaty or convention is considered of equal standing to a statute. One example of treaty obligations overriding, or taking priority over, federal statutes was the tuna-dolphin dispute between the United States and Mexico. The discussion continued at the WTO under its dispute resolution process.
In short, US environmental statutes can be ruled contrary to US treaty obligations. Under most treaties, the United States can withdraw, or take back, any voluntary limitation on its sovereignty; participation in treaties is entirely elective. But for practical purposes, some limitations on sovereignty may be good for the nation. The argument goes something like this: if free trade in general helps the United States, then it makes some sense to be part of a system that promotes free trade; and despite some temporary setbacks, the WTO decision process will it is hoped provide far more benefits than losses in the long run.
Ultimately, whether the United States remains a supporter of free trade and continues to participate as a leader in the WTO will depend upon citizens electing leaders who support the process. The legal basis can be a Constitutional law, a statute, a regulation, or a prior judicial decision that creates a precedent to be followed. Positive law is full of cases, treaties, statutes, regulations, and constitutional provisions that can be made into a cause of action. An old saying in the law is that the law does not deal in trifles, or unimportant issues in Latin, de minimis non curat lex.
Not every wrong you may suffer in life will be a cause to bring a court action. If you are stood up for a Saturday night date and feel embarrassed or humiliated, you cannot recover anything in a court of law in the United States, as there is no cause of action no basis in the positive law that you can use in your complaint. If you are engaged to be married and your spouse-to-be bolts from the wedding ceremony, there are some states that do provide a legal basis on which to bring a lawsuit.
Whether a runaway bride or groom gives rise to a valid cause of action in the courts depends on whether the state courts still recognize and enforce this now-disappearing cause of action.
Your cause of action is thus based on existing laws, including decided cases. As noted earlier in this chapter, the English common-law tradition placed great emphasis on precedent and what is called stare decisis. A court considering one case would feel obliged to decide that case in a way similar to previously decided cases.
The English legislature Parliament was not in the practice of establishing detailed statutes on crimes, torts, contracts, or property. Thus definitions and rules were left primarily to the courts. By their nature, courts could only decide one case at a time, but in doing so they would articulate holdings, or general rules, that would apply to later cases. Suppose that one court had to decide whether an employer could fire an employee for no reason at all.
Suppose that there were no statutes that applied to the facts: there was no contract between the employer and the employee, but the employee had worked for the employer for many years, and now a younger person was replacing him. If the court decided that the case was not legally actionable, it would dismiss the action. Future courts would then treat similar cases in a similar way. In the process, the court might make a holding that employers could fire employees for any reason or for no reason. This rule could be applied in the future should similar cases come up.
But suppose that an employer fired an employee for not committing perjury lying on the witness stand in a court proceeding ; the employer wanted the employee to cover up the company's criminal or unethical act. Suppose that, as in earlier cases, there were no applicable statutes and no contract of employment.
The English legal system
In each case the general rule and its exception , the common-law tradition calls for the court to explain the reasons for its ruling. In the case of the perjury exception, the efficiency of the judicial system and the requirements of citizenship might be used as reasons. That is, reasonable people will disagree as to the persuasiveness of the reasoning a court may offer for its decision. What has the court actually decided, and why?
Remember that a court, especially the US Supreme Court, is not only deciding one particular case but also setting down guidelines in its holdings for federal and state courts that encounter similar issues. Note that court cases often raise a variety of issues or questions to be resolved, and judges and attorneys will differ as to what the real issue in a case is. Because judges do not always agree on first principles i. There are different sources of law in the US legal system. The US Constitution is foundational; US statutory and common law cannot be inconsistent with its provisions.
Congress creates statutory law with the signature of the president , and courts will interpret constitutional law and statutory law. Where there is neither constitutional law nor statutory law, the courts function in the realm of common law. The same is true of law within the fifty states, each of which also has a constitution, or foundational law. Both the federal government and the states have created administrative agencies. An agency only has the power that the legislature gives it. Within the scope of that power, an agency will often create regulations see Chapter 5 "Administrative Law" , which have the same force and effect as statutes.
Treaties are never negotiated and concluded by states, as the federal government has exclusive authority over relations with other nation-states. A treaty, once ratified by the Senate, has the same force and effect as a statute passed by Congress and signed into law by the president.
Constitutions, statutes, regulations, treaties, and court decisions can provide a legal basis in the positive law. You may believe you have been wronged, but for you to have a right that is enforceable in court, you must have something in the positive law that you can point to that will support a cause of action against your chosen defendant. Other legal and political systems are very different from the US system, which came from English common-law traditions and the framers of the US Constitution.
Our legal and political traditions are different both in what kinds of laws we make and honor and in how disputes are resolved in court. The common-law tradition is unique to England, the United States, and former colonies of the British Empire. Although there are differences among common-law systems e.
The main alternative to the common-law legal system was developed in Europe and is based in Roman and Napoleonic law. A civil-law or code-law system is one where all the legal rules are in one or more comprehensive legislative enactments. The code covered criminal law, criminal procedure, noncriminal law and procedure, and commercial law.
The rules of the code are still used today in France and in other continental European legal systems.
Common Law vs. Civil Law: A Rough Guide for Your Business | Vistra
The code is used to resolve particular cases, usually by judges without a jury. Moreover, the judges are not required to follow the decisions of other courts in similar cases. The major agency for growth and change, however, is the legislature, not the courts. Civil-law systems are used throughout Europe as well as in Central and South America. Some nations in Asia and Africa have also adopted codes based on European civil law. Germany, Holland, Spain, France, and Portugal all had colonies outside of Europe, and many of these colonies adopted the legal practices that were imposed on them by colonial rule, much like the original thirteen states of the United States, which adopted English common-law practices.
One source of possible confusion at this point is that we have already referred to US civil law in contrast to criminal law. But the European civil law covers both civil and criminal law. There are also legal systems that differ significantly from the common-law and civil-law systems. The communist and socialist legal systems that remain e. Islamic and other religion-based systems of law bring different values and assumptions to social and commercial relations.
Legal systems vary widely in their aims and in the way they process civil and criminal cases.
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Common-law systems use juries, have one judge, and adhere to precedent. Civil-law systems decide cases without a jury, often use three judges, and often render shorter opinions without reference to previously decided cases. Preliminary Note to Students. Title VII of the Civil Rights Act of is a federal statute that applies to all employers whose workforce exceeds fifteen people.
The text of Title VII says that. At common law—where judges decide cases without reference to statutory guidance—employers were generally free to hire and fire on any basis they might choose, and employees were generally free to work for an employer or quit an employer on any basis they might choose unless the employer and the employee had a contract.
In the s, many female employees began to claim a certain kind of sex discrimination: sexual harassment. Some women were being asked to give sexual favors in exchange for continued employment or promotion quid pro quo sexual harassment or found themselves in a working environment that put their chances for continued employment or promotion at risk.
Having set the broad policy, Congress left it to employees, employers, and the courts to fashion more specific rules through the process of civil litigation. This is a case from our federal court system, which has a trial or hearing in the federal district court, an appeal to the Sixth Circuit Court of Appeals, and a final appeal to the US Supreme Court.
Teresa Harris, having lost at both the district court and the Sixth Circuit Court of Appeals, here has petitioned for a writ of certiorari asking the court to issue an order to bring the case to the Supreme Court , a petition that is granted less than one out of every fifty times.
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The Supreme Court, in other words, chooses its cases carefully. Teresa Harris worked as a manager at Forklift Systems, Inc.
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