英文本 法律体系

Because the United States is federation, Americans are usually well aware that the law may vary from jurisdiction to jurisdiction. Politically, it is certainly true to say that each independent jurisdiction has its own independent legal system. However, in terms of legal traditions and legal methods, most of the world's legal systems belong to one of a few legal traditions. In the Western World, and in parts of the world that have been colonized or strongly influenced by the West, there are two main legal traditions or legal families—the civil law and the common law. The U.S. legal system belongs to the common law tradition（Louisiana excepted）.

This note will introduce you to the origins and development of the common law and the civil law and to the main distinctions between these two systems, especially in terms of legal methods.

1. Origins of the two legal traditions and their diffusion around the world

The Common Law

The common law tradition originated in England. A new legal order was established as early as 1066 by the Norman conquest, but the common law did not exist in 1066. William the Conqueror did not abolish the local customs and the local courts. Local courts continued to apply local customs. There was no law common to the whole kingdom. The King did however establish some royal courts at Westminster. Their jurisdiction was at first very limited but eventually expanded to the point where the local courts fell into disuse. The decisions of the royal courts became the law common to the whole kingdom, the common law.

The common law has its source in previous court decisions. The main traditional source of the common law is therefore not legislation but cases. This is so true that when the common law evolved into an unfair set of rigid and formal procedural rules, the King, rather than legislate to amend the law, created a new court. When a subject thought that a common law decision led to an unfair result he（and at the time usually not she）would petition the King. There were so many petitions that the King created the court of Chancery which could grant a discretionary relief“in equity”to correct the common law. The decisions of this court gave birth to a body of law called equity which is also based on previous judicial decisions. Both law and equity are part of what is called the common law tradition.

The British Empire brought the common law to all continents. The common law was“received”in many countries, but its reception has been most successful in countries where the European settlers became a majority and imposed their law over indigenous populations. This is the case in Australia, English Canada, New Zealand and the United States（except Louisiana where the civil law was in place before the United States gained jurisdiction. ）The common law was also imposed on many other colonies but usually with some adaption to take into account the local customs. In some cases, the United States imposed parts of the common law on newly entrusted territories（e. g. , the Philippines）. Still today in Africa and Asia, former British colonies continue to apply the common law. Today, India is the most populous common law country.

Following the Second World War, the economic hegemony of the United States also contributed to the expansion of the common law.Contracts were drafted in common law terms and international arbitrators often applied common law principles.

A note about the common law in the United States. Because of the early independence of the United States, the common law here has evolved separately from the common law of England and of other Commonwealth countries. Commonwealth nations became independent only fairly recently, and even long after they were independent, some nations continued to allow appeals to the Judicial Committee of the Privy Council in London（some countries still allow such appeals）. This has had a unifying effect on the law of these countries and still today the courts of one country will consider the decisions of the courts of another Commonwealth country as very persuasive. By contrast, only rarely, if ever, does a United States court determining a matter of domestic law invoke a decision of a foreign country's courts. It is therefore even more striking that notwithstanding years of“legal separation”the law of this country still has so much in common with the law of other common law countries.

The Civil Law

The origins of the civil law go further back. They can be traced to the Twelve Tables of the Republic of Rome（probably in the fifth century B. C. ）. In its origin, it is the law of the city of Rome, the law applied to a citizen（in Latin, civis）of Rome as opposed to the law applied to a non-citizen. The expression“civil law”, in Latin jus civilis, literally means the law of the citizens of Rome.