COMMON LAW VS. CONTINENTAL LAW

Common law vs. Continental law

Common law vs. Continental law

Introduction

Common law was invented in England by three courts - King's Bench, Exchequer, and the Court of Common Pleas - in order to establish a system of law that could supersede the judgments of local courts. Also, in terms of its application to civil law, common law was used to compensate people who committed wrongful acts, known as torts.

The term common law can also refer to the precedent-based element within the legal system, as opposed to statutory law and legislation. The reasoning used to interpret common law is known as casuistry. It is a strict, principle-based reasoning that uses the circumstances of a case to evaluate the laws that are applicable. Decisions made about similar cases in the past are valuable, and casuistry is consequently also known as case-based learning. The case in question is evaluated on the basis of past cases, called paradigms. The strength of the similarity among the cases, in turn, strengthens the reasoning based on them. (Neubauer, 2007, 28)

Discussion

Civil law is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not determined, as in common law, by judges. Conceptually, it is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Germanic, ecclesiastical, feudal, and local practices, as well as doctrinal strains such as natural law, codification, and legislative positivism. Materially, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules. It holds legislation as the primary source of law, and the court system is usually inquisitorial, unbound by precedent, and composed of specially-trained judicial officers.

According to Bitlaw, "common law trademark rights are limited to the geographic area in which the mark is used. Thus, if a coffee blend is sold under the name BLASTER in California only, the trademark rights to that name exist only in California."

According to Cornell University, "Under state common law, trademarks are protected as part of the law of unfair competition."( Charles, 2001, 308)

According to Lloyd Rich, "Federal law, known as the Lanham Act, protects marks registered with the U.S. government while state and common law that differ from state-to-state protect state registered and unregistered (common law) trademarks."

The civil law system takes as its major inspiration Roman law, and in particular the Corpus Juris Civilis of Emperor Justinian, and subsequent expounding and developments during the Middle Ages.[7] Roman law was received differently in different countries. In some it went into force wholesale by legislative act, i.e., it became positive law, whereas in others it was diffused into society by increasingly influential legal experts and scholars.

Roman law was in place in the Byzantine Empire until its final fall in the 15th century. However, subject as it was to multiple incursions and occupations in the latter Middle Ages, its laws became widely available in Western Europe. It was first received into the Holy Roman ...