CODIFICATION

Codification

Codification

'The codification of directors' duties was an unnecessary step. The enacted duties do not differ substantially enough from their equitable and common law counterparts to warrant placing them in statute, and the courts will still need to refer to pre-2006 case law when determining whether or not a breach of duty has occurred.'

There are as many legal systems in the world as there are nations. In fact, considering the occasional variation within nations, there are considerably more legal systems than nations. But despite these differences it is possible to group each system as part of a particular legal tradition. Comparative criminal justice scholars distinguish these terms by describing legal traditions as reflecting attitudes, values, and norms regarding the nature and role of law; it is a broad concept that implies a deeply rooted and historically based heritage. Legal systems, on the other hand, direct attention to the specific organizations (e.g., police, courts, corrections) and procedures (e.g., trial by jury) used to carry out the ideas of a legal tradition.

At some point customs are put in written form. This can lead to confusion since both the common and civil legal traditions have written laws. But the distinction between the written laws of the common tradition and codification in the civil tradition is more than simple semantics.

Like the civil law, common law rests on certain principles. The difference is that for common law the principles exist as generally accepted tradition. Writing them down merely reveals the principles; it does not create them. When common law legislatures prepare statutes or codes, they are not so much making law (as do civil law legislatures) as proposing it, because final determination regarding the validity of a statute lies with the courts that evaluate the legislation. In other words, civil law legislation stands on its own since the legislature is the source of law; but common law legislation is not authoritatively established until it passes the examination of the courts. If the courts decide the written law contradicts those principles, the statute will be struck down.

Initially the principles referred to by the courts were established as custom. Today the principles are recorded in constitutions and statutes as well as custom. But this reliance on constitutional and statutory authority does not mean common law is simply civil law with a different history. Quite the contrary. Even with written law and a reliance on statutes, the common legal tradition stands apart from the civil law tradition. In addition to the different ideas about the source of legal authority (custom versus codification), and the different impact of writing the law down (a convenient way to express principle versus an authoritative statement thereof), there are clear procedural differences between the two legal traditions. Those differences are best described with reference to the adversarial process.

The oldest contemporary legal family is the civil law tradition. Persons familiar with the U.S. legal system often find this term confusing, since in the United States civil law refers to private wrongs (such as contract disputes), ...