Legal Traditions in American Law. Essay

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Common-law judges rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law" (Common law, 2008, law library). The law evolves with custom and interpretation, rather than remains fixed in stone.

Common law may be contrasted with civil law, which predominates in France and has had less influence on the law of the United States, except in Louisiana. Louisiana judges, unlike their common-law counterparts, are not bound to consider judicial precedent first, but may do so as an option. France exported the system of civil law to America when it established Louisiana as a colony in 1712. Even today, "the first article of the Louisiana Civil Code reads: 'The sources of law are legislation and custom' (LA C.C. Art. 1). This means that judges in Louisiana are obligated to look first to written laws for guidance in reaching their decisions. If no statute directly governs the dispute, judges may base their decisions on established custom" (Civil law, 2008, the Law Library). Also, unlike common law appellate courts, Louisiana justices operating under civil law may review findings of fact as well as findings of law and overturn the decisions of lower courts because they believe a defendant to be innocent, not merely because there was a legal error.

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Civil law is heavily influenced by Roman law. However, English law draws upon some Roman laws, such as its definition of forgery, libel and trespass. It was also Roman law that first established the division between written and unwritten law. Finally, even though English, common-law tradition may seem to predominate in the U.S., it is worth noting that no tradition is absolute: "Commentators, while noting the differences between common law and civil law, which is based on Roman law, also point out that these differences can be overemphasized. Common-law countries, like the United States, enact statutes and even comprehensive codes, such as the Uniform Commercial Code, while civil-law countries have laws that have been developed by the courts and not enacted through legislation. Roman law itself contained these conflicting impulses of codification and judicial interpretation" (Roman law, 2008, Law Library).

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