Thus over the centuries in europe scholars trained in

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Thus, over the centuries in Europe, scholars trained in Roman law had responsibility for shaping and developing the law, while in England, that was a function of the judges. This difference was compounded by the fact that the judges decided the cases as they received them. Hence, the various areas of law developed on a case-by-case basis. Certain areas would advance and develop more quickly than others, simply because more cases in those areas came before the courts. The judges were dealing with the imperfections of real life situations and people. Academics on the other hand, dealt with hypothetical situations, concentrating on the development of legal method and reasoning and striving to ensure legal certainty in the systems they were creating. One area in particular where the difference between the Civil and Common Law systems is most notable, is in relation to procedural law: the preparation and progress of a case before the court. If one takes a simple civil suit and looks at the way in which witnesses and experts are selected and examined and the way the different tasks and functions are split between the court, the parties and the lawyers at different stages, one will very quickly see how the two systems diverge. This difference is discussed further later. These traditional differences are, however decreasing. The role of the judges in Civil Law countries has changed significantly, particularly with the development of the nation state, the establishment of national and constitutional courts and the constitutionally guaranteed independence of the judiciary. The gain in power by the judges has been matched by a corresponding loss of power by the academics. Conversely, in the common law countries, the role of the academics in the development and commentary on the law has increased. 31
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CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY 2.5 Other Legal Systems There are a number of countries and regions in the world, whose legal systems cannot clearly be placed in just one of the large legal families. Examples include Louisiana and Puerto Rico in the United States; the Canadian province of Quebec; Scotland in Great Britain and South Africa, Zimbabwe, Mauritius, Sri Lanka and the Philippines. In addition, there are also the religious legal families: legal systems, which are based on religious laws, not secular laws. Such legal systems are those based on the laws of Islam, Judaism, Hinduism and Buddhism, as well as the Canon or Church law of the Christian religions. Although these laws are still applied to varying degrees throughout the world, the increasing influence of the Western lifestyle and way of thinking has meant that these laws are applied in increasingly limited areas. For the most part they will tend to regulate private relations and matters to do with the family and succession or inheritance.
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