What is the difference between common law and positive law?

Answer 1

In the common law system, law is interpreted and, thus, "written" by judges hearing the cases. Their decisions become the 'rule of law' for all future cases that are factually similar. The civil or codified law is law that is written into statute or code books and are strictly interpreted by the courts of that country.

In a country which uses civil law, the legal system is based upon legal principles and codes usually rooted from the laws and legal system of the Roman Empire. Any updates to the legal code must be made through legislation or other lengthy processes. Therefore, judges must make rulings based only on these codes and statutes, only analyzing past judicial interpretations of the law for advice. This process allows for a stabler and more representative legal system. France, Germany, and Spain are modern examples of countries who use civil law.

On the other hand, a country which uses common law has a legal system based primarily upon past judicial opinions. These judicial opinions are interpretations of legislation, which are considered more as a guide than as literal requirements such as under civil law. Thus, common law systems acquire their laws over time and may have their laws altered by single rulings. This practice allows for a more flexible and expeditious legal system bypassing the often reluctant and slow-moving legislative system. Because it was developed in England, modern examples of countries which use common law are typically former English colonies such as Australia, India, Canada, and the United States.

Answer 2

In Common Law, judges are required to comply with precedents - rulings from previous cases - as well as with statutes (law that was made by the government). This means that some "laws" are created by judges, and these "fill in the gaps" of statute law. In Civil Law, judges interpret statutes and precedents are advisory only (but still pretty influential).

In Common Law, trials use the adverserial method. These means that two lawyers take it in turns to present their case to a neutral judge, who will eventually decide which case is the most convincing. In Civil Law, the judge dominates the trial (but lawyers are still there to persuade him) and may well make his opinion known throughout the trial.

Answer 3

Common law originated in England and and was later adopted in the U.S.. Common law is based on precedent (legal principles developed in earlier case law) instead of statutory laws. It is the traditional law of an area or region. The "rule of law" is a concept which is based on the premise that all citizens shall/will/should comport themselves in a lawful and orderly manner lives for the greater good and the peace of the community.

Answer 4

A common law is based solely on the current standards or customs of the people, while a positive law is dictated from a sovereign or other central authority to prevent disputes and wrongs from occuring.

Answer 5

?COMMON LAW:

Common law is law developed by judges through decisions of courts and similar tribunals (also called case law), rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law,[1] on the principle that it is unfair to treat similar facts differently on different occasions.[2] The body of precedent is called "common law" and it binds future decisions. In cases where the parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent.[3] Thereafter, the new decision becomes precedent, and will bind future courts.

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In practice, common law systems are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems.

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Common law legal systems are in widespread use, particularly in England where it originated in the Middle Ages,[4] and in nations that trace their legal heritage to England as former colonies of the British Empire, including the United States, Singapore, Pakistan, India,[5] Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong and Australia

A ?LAW Code

A ?Law Code is a type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it existed at the time the code was enacted, by a process of codification. Though the process and motivations for codification are similar in common law and civil law systems, their usage is different. In a civil law country, a Code typically exhaustively covers the complete system of law. By contrast, in a common law country a Code is a less common form of legislation, which differs from usual legislation that, when enacted, modify the existing common law only to the extent of its express or implicit provision, but otherwise leaves the common law intact. By contrast, a code entirely replaces the common law in a particular area, leaving the common law inoperative unless and until the code is repealed.[

Answer 6

The Australian legal dictionary states that the terms can be used the same way. They mean the same thing.