The origin of common law dates back to the fifth century A.D. Can be linked to the ancient Roman Empire.
You may have heard of King Justinian of Rome (A.D. 4883-565) during which time many rules and regulations were consolidated and called Sahita.
From that time forward, this law system spread throughout Europe, including England, for some time.
In the rest of the world, this law system was implemented during the 7th and 8th centuries in the era of colonialism.
Now you can see this law system in some countries of South America and parts of Africa.
As you know, France and Portugal came to establish their suzerainty in India for some time and during that period they were successful in enforcing their law and order in places like Pondicherry, Goa, Daman and Diu.
What are the main features of the European (continental) law system?
(A) Importance of Act, Statute passed by competent legislature:
Acts passed by Parliament or competent authorities have the highest importance in this legal system. The authority of Parliament or the competent legislature is to incorporate the rules and then to prepare them according to modern circumstances and pass them in Parliament.
For example, the rules included and framed in the area of crimes are called "penal code". These rules passed by Parliament are subsequently used by judges in the settlement of disputes.
The judges regard the rules made by Parliament as supreme and do not attempt to change them by exercising their own authority as they are in the common law family.
They may interpret the ambiguous language used in the Act as their own, but they clarify that it will not be binding except on the disputed parties.
The rules introduced by Parliament are not only interpreted by judges but also by scholars and academics of law.
Abstract rules passed by Parliament are also highly valued by judges and advocates.
(B) The structure of the judiciary
The judiciary in the European (continental) or Continental law system is made up of individuals from diverse fields because in this legal system the judge can be from any background. A person with special knowledge of a particular area may be appointed as a judge.
Thus, an engineer, or a doctor or scientist can become a judge. There is no need to study law as a separate subject for the required years and can then work in court.
Thus judges of higher courts or trial courts are appointed as persons with diverse backgrounds and do not require a degree in law education.
Law education is also provided in countries following European (continental) or Continental law systems, but this is not the only necessary requirement to become a judge.
In India too you may have noticed that technical persons are also appointed by the court as members to reach conclusions in cases where a technical problem arises.
(C) Power of judges in making laws
In the European (Continental) or Continental law system, judges do not make laws and their judgments do not gain authority in addition to that dispute appearing before the court.
They use only the law made by the legislature and they themselves do not make the law. In other words, decisions made by higher courts are not considered as pre-judicial decisions as in the common law system.
Their decisions are respected by judges in other cases but they are not obliged to comply.
For example, a decision by the Supreme Court in France, such as "Court de cassation", is not binding on all other courts in France.
However, judgments of that court are given high regard in judicial bodies. The judges of the Supreme Court cannot refute the laws passed by the legislature, they can only enforce the rules passed by the legislature.
One advantage of this system is that many of the decisions of the courts are not studied by lawyers, as is done in the common law system and the advocate must have knowledge not only of the laws passed by Parliament and the legislature but of the higher judiciary Must also have knowledge of the given decisions.
(D) Exploratory ideology of court process
Judges in the continental law system play an active role in finding the truth, as opposed to the inactive role of the courts in finding the truth and relying on the ability of advocates to ascertain the facts of the case.
The ideology used in the court process is not antithetical but exploratory (the word investigative means inquiry).
pHere the judge does not merely act as a referee between the plaintiff and the defendant, but he coordinates with all the disputed parties to actively investigate the case and collect evidence and try to find out the truth.
Thus, the responsibility of collecting evidence is not only on the advocate but also on the judge. The judge himself can go to the crime scene to search for evidence if he finds that advocates from the disputed parties have omitted some evidence to ascertain the truth.
Here judges are not passive observations but play their active role in finding the truth. In India you can see the use of this scenario in the functioning of commissions ascertaining the facts established by the government.
You must have heard the name of the Srishanavati Commission of Inquiry constituted by the Government of Gujarat to find out the real facts regarding the Godhra riots in the year 2002.
The continental law system originated in Europe and was formed based on the efforts of scholars from twelfth-century European universities (especially in Germany) and the consolidations of King Justinium of the Roman Empire. Therefore, this legal system is also known as "Schremeno - Jamaican legal system".
In this legal system, law was originated primarily as a mandatory "private law" as a means of regulating private relations between citizens at the individual level for historical reasons.
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