Freeman

[Bewolf]

Originally Posted by Hood

Habeus corpus originated in the English courts. To follow up on Galway's post I thought I'd touch on the two main different types of legal systems in the world.

One system is based on Roman law and the other on the English common law. Roman law is based on the rights of the state and it gives permissions for citizens to do certain things. For example a law may say that you are allowed to do X, Y and Z because the state gives permission.

Common law builds up over time from court decisions and legislation commonly says that you cannot do certain things. For example you can do whatever you like but you cannot do A, B and C because it infringes the rights of others, or you can do other things but you have to do it like so.

The split in the different types of systems follows broadly colonial lines, so the USA has a common law system (though its now a hybrid of the two) as do most ex-English colonies. Scotland and most ex-French and Spanish colonies have Roman law systems.

In my opinion most countries are having a gradual shift towards state control and this means a shift towards the Roman law system. I feel this is as a response to things like terrorism or external threats, not because of some conspiracy, and this is why habeus corpus is gradually being eroded - the state doing what it wants in order to protect the state and its peoples.

Personally I don't have a problem with it as long as it is for the right reasons. What the "right reasons" are is worthy of debate. Then the problem becomes how those reasons are applied.

Hood

Caveats

The above is a very general outline, for a better and fuller explanation do your own research. Any opinions expressed are my own and have nothing to do with previous posts or opinions expressed by anyone on this forum but instead are formed from my own life experiences and from what I do in my work.

Close, but not exactly the right choice of words in regards to civil law.

Roman law is based on the rights of the state and it gives permissions for citizens to do certain things. For example a law may say that you are allowed to do X, Y and Z because the state gives permission.

Actually the most stricing difference is not that civil law is "giving citizens permission", which sounds like some kind of dictatorial regime. It is simply not based on precedents like the common law.

In fact both systems are based on the "not guilty until proven otherweise" principle and ppl can do whatever they want until it hurts or endangers others.

Basicly, common law means that a judge makes a call in a certain case which in it's subject matter is a first one.
Later, comparable cases can call upon that judgement to get a similiar call.
It's also not so much english as the roots of this system go back to germanic practices in general, which makes it rather old, comparable to roman law.

Civil law means that ppl get together and actually write down rules for juristication based on cases that have been handeled so far. Should an incident occur that has not yet been covered, then lawmakers come together to figure out rules for future handling of such cases. This law then is written down and binding to courts, so judges do not enjoy the same kind of freedom the common law judges do.

Common law is more individual, judges enjoy more freedom and sentences are mostly based on personal opinions of judges and juries (within the legal framwork), but precedents are often dependent on present day fashion and in the long run, rather chaotic.

Civil law is more rigid and less flexible, on the other hand more reliable and predictable in it's outcome and often (well, sometimes) more based on common sense (lawmakers actually not having anything to do with the case are making the descisions, which makes for laws that are more based on principle)

Both systems, in the long run, tend to become incredible complex, the on in it's chaos, the other in it's regidity.

Imho, a mix of both systems probably is the best way to go, though the less emotions you have in a court, the better.