Continental law, also known as European law, constitutes the legal system in most European and Latin American countries and has its origin in Roman law.
This continental law is also known as civil law and has its origin in Roman, German and canon law. Its main characteristic is the essentiality of a written code of laws, that is, that the normative system is codified and this is its main source of law.
The other defining characteristic of continental law is conflict resolution through a deductive method. What does this mean? In continental law there is a strong legal armament, that is, a strong legislative power from which legal norms emanate that citizens must comply with.
When these legal norms are not complied with or the parties come into conflict over their application, it will be the judge who decides this conflict and will do so through the legal norms that exist in the system. From the already written and established rule, the judge will obtain the solution for the conflict raised. The solution is already before the conflict.
Characteristics of continental law
The main features are:
- It is a legal system based on the rules emanating from the legislative and executive power.
- The jurisprudence only applies and interprets the rules already written and does not create law.
- The solutions to the cases are in the written rights.
- The jurisprudential precedents are not mandatory.
- Its origin is in the principles of Roman law.
- The rules have been dictated with democratic legitimacy.
Continental law and Anglo-Saxon law (civil law VS common law)
Continental law has its opposite in Anglo-Saxon law. Law born in the British Isles and that has its application in the same and the territories that were British colonies such as the US or Australia among others.
In common law, unlike continental law, there is no broad normative framework, but the courts will be in charge, through particular conflicts, in putting together a legal system that must be respected by citizens.
In common law they use the inductive model. That is to say, a conflict is presented before the judge and it will be he who will create the right to be able to solve the lawsuit and that creation of the right by the judge will have the character of a legal norm. The solution stems from the conflict and was not there before. These solutions by the judges are known as jurisprudence and must henceforth be complied with by the other courts as if they were law.
Sources of continental law
The main sources of continental law are:
The current sources of law are:
- Laws: The written rules that emanate from the will of the people through the courts. These norms are approved according to the appropriate procedure designated by each State and are published so that they can be known by all citizens. They are susceptible to coercive application and are the main source used by judges or arbitrators to settle a lawsuit.
- Customs: It is known as common law and is a subsidiary source of the law. These are recurring performances in a certain place.
- General principles of law: they are a set of ideas that attribute to the rules and the legal system in general an ethical character. They are subsidiary sources of both laws and customs.
- In Roman or continental law systems, jurisprudence is not recognized as a source of law because it is not given the function of creating law but simply of application and control of it. On the other hand, in the Anglo-Saxon system of law, jurisprudence is recognized as a source of law since it has the power to create law. That is, the sentences of its highest courts will be a precedent and will have to be carried out in the future by the lower courts and will have a persuasive character for the higher courts.