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CHAPTER 2 - AMERICAN COMMON LAW

Published online by Cambridge University Press:  05 June 2012

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Summary

THE TWO WESTERN LEGAL TRADITIONS

The law and legal system of what is now the United States of America form, especially so far as private law is concerned, a part of the common law. With its beginnings in England, the common law constitutes one of the two great legal traditions of the Western world, the other being the civil law, rooted in continental Europe.

These two traditions hold much in common. Both are products of western civilization and share its cultural and ethical heritage. However, important differences existed – and still exist, though to a lesser degree – between the two traditions. One difference respects the manner in which the authoritative starting points for legal reasoning are set out: In the civil law, these normally take the form of legislation; in the common law, especially in earlier periods, reliance is largely on judicial decisions.

A second difference relates to the influence of Roman law. In the case of the civil law, the Roman influence was various and profound; on the other hand, the common law was little influenced by Roman law.

A third difference relates to the style of legal analysis and thinking. Although various forces have today reduced the differences between the two traditions, the civil law still states legal propositions more abstractly and systematically than does the common law. Moreover, the civil law also generally places greater value than does the common law on coherence, structure, and high-level generalization.

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Publisher: Cambridge University Press
Print publication year: 2007

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