Institutional Functions and Disparate Connotations

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In contemporary political and legal beliefs, the term civil law indissolubly provides perplexing connotations. Many harbingers ostensibly understand the term civil law as a substantive area of law which preluded in the times of Ancient Rome. Conversely, individual’s familiar and residing in common law jurisdiction understand civil law to be a private area of law which is non-criminal. In this essay I will be analysing the terms civil law, their institutional functions, and their disparate connotations, before reaching a conclusion as to why the term creates an area of misconception. Common law emanated from legal developments in early Middle Ages in medieval England, influenced by Anglo-Saxon law which was applied in British colonies. The fundamental reasoning for the system is the doctrine of precedent. In common law jurisdictions such as England and Wales, courts lower in the judicial hierarchy are strictly bound by decisions of senior appellate courts. This process, termed stare decisis is the crux of system, on the basis that it is unfair to judge similar situations differently. Such decisions are contained within yearbooks/reports termed case law. Civil law within this nature relates to a private category of law which is non-criminal; it is the legal mechanism whereby litigants can have their rights enforced (Slapper & Kelly, 2013). Torts, quasi-contract, property are all examples of civil law. Unlike criminal law, the purpose of civil law is not punishment per se, it is, however, concerned with remedying litigants who have been wronged by another’s act/omissions. Comparing both criminal law and civil law we notice another difference. Unlike criminal law, which evidential standard is based beyond reasonable doubt, the standard of proof in civil litigation is on the balance of probabilities; that is, more probable than not. In this sense, it is generally the claimant whom carries the burden of proof. Nonetheless, there are situations where this may reverse. For example, in a prima facie case, i.e. defamation case, the burden of proof will reverse onto the defendant to refute the claims therein. Civil cases are generally disputes between two parties or an organisation, a party whom commences a case is called the claimant, and the party that the action is being taken against is termed the defendant. If the claimant can prove on the balance of probabilities that the claimant wronged him/her, the defendant will then be liable for a form of compensation which is typically a sum of money. However, where the standard of proof is not met, one will be found not liable. Common law, as opposed to civil law, operates as an adversarial system; a challenge between two opposing adversaries before a judge, who acts as a moderator. In England and Wales, either-way or indictable offences are often adjudicated by a jury of ordinary people who will decide on the facts of the case. The judge then decides the appropriate sentence bases upon the jury’s outcome. Another noticeable difference between civil law and criminal law is the parties involved; unlike criminal law, cases are referred to by the parties of the litigation, for example, Smith v Jones. By contrast, criminal law styles cases as R v Jones, “R” in this sense relating to “Regina” – Latin for queen. Whilst the United Kingdom (UK) is a signatory to the European Union (formerly European Community), the jurisprudence emanating from the convention generally takes precedence over domestic law where there is a conflict. In addition, the Court of Justice of the European Union is, in theory, formed upon civil law principles, therefore, providing requirement to follow the principle of stare decisis (Slapper & Kelly, 2013). Moreover, it’s palpable that the deep grammar of the civil law paradigmatic brings with it perplexing connotations. In a common law jurisdiction, to the reasonably prudent layperson, the term civil law system would confuse. An unindustrialized, and more nuanced view, is that the term does not proficiently distinguish itself, consequently creating a simultaneous area of misperception. Noticeably, there needs to be a more context-specific approach to the terminology that surrounds us. While the area of substantive law implicitly relies on a conception of civil law, its namesake entails a series of complexions particularly to those whom reside in common law jurisdiction. By contrast, the term civil law further relates to jurisdictions who do not apply a common law approach, instead applying comprehensive coding and scholarly texts to proceedings - allowing courts to adjudicate more liberally. Nevertheless, consistency and certainty of the law must be fortified. Civil law is developed from Roman law, built by the Emperor Justinian in the sixth century, CE (Bamford, Tayleur and Verlander, 2013). Whilst common law relies on judicial precedent, the legal traditions in Europe, non-common law jurisdictions or non-Islamic countries give less weight to precedent, applying scholarly literature, legislative enactments and comprehensive coding to evaluate jurisprudential conditions. Such codes differentiate between categories of law: substantive law evaluates which acts are subject to criminal prosecution, procedural law establishes the technical aspects and prescribes which actions are to be construed as a criminal act, and penal law establishes the appropriate punishment. A well-worn example of the paradigm is the inquisitorial nature of a civil law system. Analogously, it is evident that the initiation of litigation segregates between the two jurisdictions. Whereas in common law jurisdiction it is the prerogative of a prosecuting authority (or sometimes individual), in civil law jurisdiction it is generally the judge’s role to initiate proceedings, provide formal charges and investigate the matters therein. Nonetheless, s/he is bound to conform to a framework of established and systematic set of codified laws. For example, in France, the Napoleonic code forbade judges from pronouncing general principles of law. Moreover, in analogy to common law, continental systems do not use jury trial, nevertheless, appoint judges who are appointed due to their area of expertise, not impartiality. There are, however, jurisdictions which rely on a pluralistic system; that is, they are mixed. For example, Malta is a country of mixed jurisdiction, compromising of a civil and common law one. Whilst the code was highly predisposed from the Code de Napoleon and Italian Civil law, British influence, including all colonies were influenced by English common law, particularly in Public law. Similarly, Quebec’s juridical nature relies on a mixture of common law and civil law where appropriate. The system, however, emanated following the 1763 Treaty of Paris which bestowed French Canada to Great Britain. However, the Quebec Act 1774 was implemented to ensure the system was pluralistic in nature, relying on English Common law, and civil law based on the Coutume de Paris. In conclusion, it seems fair to say that the term civil law carries perplexing connotations. Within its peculiarly jurisprudential origins, civil law encompasses adjudication by means of comprehensive legal codes. However, the term civil law in common law jurisdiction pronounces a mechanism whereby one can have their rights enforced in a court of law should they be wronged by another. Perhaps the most concise, intricate conclusion is that both legal systems provide great disparity within their approaches, and a more context-specific approach should be adopted to dispel any complexities within their ornate origins. Question 2 Driving without insurance Driving without insurance is a strict liability offence, meaning intention is not required in order to be convicted. Driving without insurance is a criminal offence pursuant to the Road Traffic Act 1987 s.143 (1) (a); the law requires a driver to have at least third party insurance in place before driving or parking a vehicle on a public highway. The penalties for driving without insurance are between 6 and 8 penalty points and a means-tested fine of up to £5000. However, the police do, in limited circumstances, have the authority to issue a £200 fixed penalty notice and six penalty points. That said, by not having insurance, Rex has exposed himself to civil liability under the tort of negligence. A pedestrian can claim compensation under the government’s agreement with the Motor Insurers’ Bureau (MIB) where the opponent is uninsured. It should be advised that although Rex does not carry insurance, that does not preclude action. The MIB will evaluate the claim, and look for recompense, therefore if Rex holds particular assets, a judgment can be enforced to levy said assets. Although the police may agree, the standard of proof is on a balance of probabilities which means the claimant will carry the burden of proving liability. Tablet Computer With reference to the tablet computer, whilst warranty may provide protections, as a matter of law the Sales of Goods Act will provide protection. Under the Sale of Goods Act 1979 (as amended), goods must be (1) as described; (2) of satisfactory quality;and (3) fit for purpose. Within the first six months, the burden lies with the retailer to provide the problem is not caused by a manufacturing default. Thereafter, the burden reverses on the customer. In addition, EU directive 1999/44/EC gives consumers a two-year warranty on new goods brought from retailers. When returning goods, the directive does not require the buyer to show the fault is inherent in the product and not down to their actions. Loud music Loud music within a home can be classed as a statutory nuisance. Naturally, one has the right to enjoy the luxury of their possessions; however, the balance shifts between this, and the neighbours right to enjoyment. By virtue of theEnvironmental Protection Act 1990, local authorities are obliged to take action to investigate complaints of nuisance noise made by residents. Where one is found to be causing statutory noise nuisance, they will issue a 'noise abatement' order. Furthermore, in England, the common law tort of private nuisance may apply. That is, the unreasonable interference with the use and enjoyment of one’s property. Such litigation looks at the realms of the standards of the average person. Nuisance claims are of strict liability; that is, it negates the requirement for negligence or tortious intent. The cases of Jones v Powell and Rylands v Fletcher set forth the requirements for such a claim for a potential claim, on the basis that said neighbour’s enjoyment of property was interfered with. Contract Claim By virtue of English contract law, there has to be an offer, acceptance and consideration with an intention to create legal relations. In order to have a legally binding contract, there has to be a meeting of the minds and an intention to create legal relations. From the narrative, it would appear that the requisite intentions of contract formation have not been met, therefore Rex would have no claim in contract. Bibliography Bamford, K., Tayleur, T. and Verlander, S. (2013). 17th ed. Oxford: Oxford University Press, p.56. Slapper, G. and Kelly, D. (2011). English legal system, 2011-2012. London: Routledge. Cases Rylands v Fletcher [1868] UKHL 1 Legislation Road Traffic Act, c.52. Available at: http://www.legislation.gov.uk/ukpga/1988/52/contents (Accessed: 24 October 2014) Sales of Goods Act 2979, c.54. Available at: http://www.legislation.gov.uk/ukpga/1979/54/contents (Accessed: 25 October 2014) EU Legislation Directive 1999/44/ec of the European parliament and of the council of 25 may 1999 on certain aspects of the sale of consumer goods and associated guarantee: Available at:http://eurex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:31999L0044&from=EN (Accessed 24 October 2014)
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