Text 10322, 56 rader
Skriven 2007-01-17 07:41:40 av John W. Kennedy (13742.babylon5)
  Kommentar till text 10246 av rec.arts.sf.tv.babylon5.moderated (13666.babylon5)
Ärende: Re: Suspension of disbelief - an open debate
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> Louisiana uses Napoleonic Code, does it not?

Yes, except for some parts that have been ruled unconstitutional by
Federal courts, and, of course, it has been much revised in two
centuries. But that common observation somewhat masks the point, which
is that Louisiana uses Civil Law instead of Common Law. In most of the
civilized world, apart from the Far East and Islamic countries that
have gone back to Sharia law, there are two basic legal systems, both
of them descended from the laws of the Roman Empire. Common Law
originated in England, and is used throughout most of what was once the
British Empire, except for Scotland and Louisiana. (Even places like
India use it, because a fundamental change in legal systems in a
civilized country is a nightmare -- suddenly, every contract, every
deed, and every will becomes iffy, and every convicted criminal has
instant grounds for appeal. It was for these same reasons that Scotland
did not adopt Common Law upon the Act of Union, and Louisiana did not
adopt Common Law at the time of the Purchase or upon statehood.) Civil
Law is used throughout the rest of Europe, and in most former colonies
that were not British.

There are two big differences between the two. The first is that, in
Common Law jurisdictions, there are two sorts of law: statute law, and
case law. Statue laws are created by the legislature; case law is
created every time a judge makes a ruling on a legal point. (Right-wing
complaints about "activist judges" are frequently made in ignorance --
or pretended ignorance -- of this elementary fact.) In Civil Law
jurisdictions, there is only statute law, and if a statute is badly
worded, then, every time the point comes up, it is the job of the
advocates to convince the judge(s) that the law really means what they
want it to mean. In Common Law, it is more frequent to point out that
another court has already ruled on the issue ("a precedent"), ideally,
but not necessarily, a higher court in the same jurisdiction (making it
a "binding precedent"). It is still possible for an English judge to
make a ruling and have it cited (for persuasive purposes only) in a US
trial today; a ruling by an English judge prior to 1776 can even be a
binding precedent in the US, if nothing has happened to change things
since then.

The other big difference is the concept of "Equity", which is unique to
Common Law jurisdictions. At the US Federal level, and in most states,
the Law and Equity courts have been merged, but a technical distinction
still exists. In England (note that it is /not/ correct to say
"Britain" or "UK" when talking about legal matters) Law and Equity
still have separate court systems; until the mid-19th century, Law and
Equity even had different sorts of lawyers; "attorneys" and "serjeants"
[sic] were the Equity equivalents of solicitors and barristers. Law
deals with statute law and case law, and deals out prison sentences,
monetary fines, and the death sentence. Equity deals with wrongful
situations outside the law, and deals out injunctions and the like --
generally speaking, in orders to fix or restore the broken state of
affairs. Whenever a US judge issues an injunction, he is wearing his
"Equity" hat. Equity mostly works by precedents, but where precedents
fail, a judge is free to apply his own conscience, together with the
"Maxims of Equity".
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