Civil law and English law

下面为大家整理一篇优秀的assignment代写范文- Civil law and English law，供大家参考学习，这篇论文讨论了大陆法系与英国法系。大陆法系与英国法系从12世纪开始走向了不同的道路，形成了各具特色的法律。大陆法系起源于罗马法，大陆法系的建立同12世纪罗马法的复兴密切相关，这与当时的社会环境密不可分。12世纪以后，罗马法与实际需要相结合，成为西欧大陆国家具有权威性的补充法律，从而奠定了大陆法系的基础。而在英国，诺曼征服后英国的王权得到加强。为统一各地的司法，英王派出法官到各地巡回审理案件, 并逐渐建立了一批王室法院。王室法院凭借自身的优势积极扩大其审判权，最终形成普通法。

The civil law system and the English law system took different paths in the 12th century. There are many reasons to explore the reasons, but the most important reason is that in different historical processes, the different functions of the fief system as the social and legal basis and the different legal formation process are the fundamental reasons for the two different.

The twelfth century was what maitland called "the century of law." This is because from the 12th century onwards two of the world's most famous legal systems came into being, namely, the continental law system and the English law system. The civil law system and the English law system went to different ways from the 12th century and formed their own special laws. The root cause of their differences is their different historical processes. In this paper, the author chooses the different historical processes of France and England, which are the most representative of the continental law system and the British law system respectively, to discuss the reasons for their parting ways in the 12th century.

Fief system is a political system as well as a legal system. The fiefdom system endowed the vassal and vassal with their respective rights and obligations. The vassal not only obtained the fief granted by the Lord and its political and economic rights, but also obtained the judicial power in the fief.

In France, the manorial system was introduced on a large scale during the reign of Charles martre. He distributed the land as a fief to his subordinates, who occupied and used the land on the condition of loyalty and military service to Charlie, namely in the form of fief system. The implementation of fief system to a certain extent consolidated the power of the royal family, but with the passage of time, its centrifugal force became more and more obvious, which was because the vassal enjoyed military, administrative, judicial and other powers in the hereditary territory. Vassal expanded his territory in various ways, and the expansion of vassal power inevitably led to the weakness of the centralized power. From the end of the 9th century to the beginning of the 10th century, the northern part of the west Franks became politically divided. On the basis of the fragmented political structure, the lords monopolized the power of law and were not restricted by the king, so there was no unified law. Unlike France, the British monarchy was established during conquest and had a strong centralization. The English fief system began with William's Norman conquest. During the war, William established the system of ownership with knights as the nobles. This system, with land partition as the medium, separated the obligation of maintaining the feudal regime from the landowners at all levels. In this hierarchical feudal system, not only the vassals directly under the king were required to swear allegiance to the king, but also the vassals of their subjects were required to be loyal to the king, that is, "the vassal of my vassal is still my vassal". The land survey of 1086 established the concept of national land being sealed off from the king of England, i.e. Claim the land from the king. Thus the principle of "no landless" was realized. The king became the largest landholder in the country, gaining absolute advantages in politics, economy and military affairs. As a result, strong central authority emerged earlier in Britain than in continental Europe.

Because law is a product of society, different social development paths lead to different legal systems. The same as the legal basis of the fief system in the two countries play a completely different role: in France, the fief made into France in the political split for a long time, so in France the judicial power is also very diversified, so there is no unified law; And the British from the beginning of the Norman conquest to the fief production for the suppression of local nobles to enhance the royal power of an important measure. The royal court has the highest judicial jurisdiction, so Britain can unify the common law on the basis of the expansion of the jurisdiction of the king, while France needs external forces to achieve the unification of laws, so it is inevitable to be branded with external forces. Therefore, in different social processes, different legal systems are born.

Another important reason for the difference between the civil law system and the English law system is the different formation process. Firstly, the civil law system originated from Roman law. The establishment of the civil law system was closely related to the revival of Roman law in the 12th century, which was closely related to the social environment at that time. The 12th century was a period of new features in western European feudal society. At that time, the laws of Western Europe could not meet this requirement because of the emergence of new things, such as the explosion of population, the expansion of residential areas, the prosperity of commerce and the rise of cities. Moreover, during this period, the royal power in France gradually increased, and in the process of increasing, the royal power needed to find new pillars to fight against the separatist forces and the expanding clerical power. At the same time, the supremacy of royal power advocated in Roman law was in line with the need of the king to enhance his authority. Therefore, in order to strengthen the royal power and expand the judicial authority, the king supported the scholars of the church to study Roman law and unified the pluralistic legal system at that time through the principles of Roman law, so as to strengthen the royal power. After the 12th century, Roman law combined with practical needs and became the authoritative supplementary law of western European continental countries, thus laying the foundation of the continental law system.

In England, the crown was strengthened after the Norman conquest. In order to unify the local judicature, the king of England sent judges to the local circuit to hear cases, and gradually established a group of royal courts. By virtue of its own advantages, the royal court actively expands its jurisdiction. In addition, the circuit judges of the royal court regularly went to each circuit to judge cases. During the trial, the principle of "following precedent" was gradually established. Royal judge circuit trial in the process of understanding the local customary law, they are screening, screening, treatment, and make decision on this basis, form their own rules, and apply it in the future similar cases, gradually formed a set of they had recognized the widespread use of common rules, this is the common law. The common law was more advanced then, and when Roman law came to England it was somewhat late. Therefore, there was no mass movement to accept Roman law in Britain, and Britain did not join the continental movement to accept Roman law, thus developing a common law system different from that of France in its own way.

From the perspective of legal status, France accepted the Roman law, on the one hand, because of the needs of social development at that time; on the other hand, because there was no unified law in France at that time, the Roman law was able to take advantage of it. On the contrary, England developed a strong royal power in the system of fiefdoms. Through the legislative activities of Henry ii, major criminal cases and civil cases were almost all tried by the royal court, whose judicial power was greatly expanded. The English crown court is able to transform common law into common law through the interpretation of the applicability of common law. The common law throughout England kept out Roman law, so French law and English law diverged in the 12th century and developed two very different legal systems along their own lines.

In a word, the different historical backgrounds of the two legal systems bring up the different characteristics of the two, thus forming a sharp contrast between each other. The function of fealty system and the difference of the formation process of the two legal systems made the two different development paths in the 12th century.

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