Civil law and Common law

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Civil law is the oldest legal system in the world, originating in Europe and spreading in Asia or Latin America as a result of the colonization period. This legal system is also known by the legal system Romano-Germanic, which is likely to have legal certainty compared to the common law system. The reason is because the source of civil law is written as a guidance in their legal practice in the civilian countries. In other words the legal system more stable. In this case legal practitioners such as judges, prosecutors, attorneys or the state apparatus will look at the legislation in resolving certain legal situations. In this case the judge has a role and obligation to apply the rules to find the solution of a case in other words the judge does not have the authority to create new law. In contrast to the common law system where laws are written only be used as a reference in finding a solution, the judge in this case has the full authority to create new law that is fair and efficient and coherent in accordance with the facts that exist. In other words, the common law of this system is more flexible than the civil law system.

Along with the rapid development period, or better known as globalization, where countries are dealing with the current global economy. In this case the law demanded to evolve with the growth of the world economy. Without realizing it happens  the penetration of common law system  in the civil law system goes through the Trojan horses system, which is the Common law way of interpretation by mixing Common law elements in civil law system. It usually brought by the practice of European judges at the European court system.

In the economic field, the civil law system tends to lose its influence. This happens because of the difficulty in changing the rules of law in the civil law system, which takes time to change the laws. Common law systems tend to be more flexible in the movement of highly dynamic world economy.

Some adherents of the civil law system countries such as Japan and Indonesia began to incorporate the common law system of teaching methods into national law. These countries tend to begin to realize that when globalization was in front, international transactions is increasing, which takes lawyers to make contractual agreements between countries. Therefore, these countries prepare themselves by building schools or law schools implement existing laws with the American-style learning method or common law learning method. Common law, as I mentioned earlier has a dynamic nature and can keep up with the times is so fast. Unlike the civil law system that tends to be slower in the times and needs time to adapt.

In the civil law as well as the teaching method taught law schools in France, where the teaching method is the provision of theories, or a description of the existing rules in detail. Where the teaching is done by the method of dictation. This is in sharp contrast with the American method wherein the teaching is done by reasoning and questioning. The law students tend not to know well the theory,  on the other hand they are required to think how to deal with an actual case. So it is currently applied by some law schools in Indonesia where law students are required to seek the basic theory in solving a case through the study of literature, or even to apply the method of question and answer in the lecture or better known as the Socratic method. This teaching method is usually in the form of a class debate in which law students in Indonesia is required to be able to make a legal solution is not only based on existing regulations. So, if the rule comes first than facts in civil law system, facts come first than the rules in the common law system.


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