History of state and law of foreign countries. Features of bourgeois legal systems (most important)

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History of state and law of foreign countries. Features of bourgeois legal systems (most important)

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Features of the systems of bourgeois law

While the French codices drew into the orbit of influence most of the continental Europe (and partly of Latin America), the English system of law took root in United States of America (albeit in a modified form), became dominant in most English colonies and dominions.

The introduction of English law in the colonies was expressly provided for in the royal charters and laws of Parliament; local law, as, for example, in India, was either extremely embarrassed, limited, or not taken into account at all. The spread of English law was also facilitated by the fact that the decisions of the colonial courts could be reviewed by the Privy Council in London.

Two different paths of development of the bourgeois revolution - English and French - in combination with other circumstances led to the gradual identification of two different legal systems. Thanks to the importance that England and France had, these systems took on an international character.

It became possible to speak of two world systems of bourgeois law: continental and Anglo-Saxon.

The main differences between these systems are:

1) the continental system of law is based on codes; Anglo-Saxon places judicial precedent on the same level as law (statute), it, with some exceptions, does not know codes, but attaches great importance to judicial practice; the number of judicial precedents to be applied in practice in England amounts to hundreds of thousands (from 300 to 500 thousand). In addition to them, there are at least 3 thousand laws (statutes) and an infinite number of acts of delegated legislation; in The United States precedent has somewhat less application in the courts than it does in England, however, here, too, 350 volumes of court decisions are published annually, which can serve as precedents; since the use of case law is impossible without freedom of interpretation, so far the English and American judges act as legislators. “Theoretically,” writes the English jurist Denning, “judges do not create law, they only explain it. Since, however, no one knows what the rule of law is until the judge formulates it, therefore, judges create law”;

2) in regard to property relations, the continental system of law is more imbued with principles rooted in Roman law; Anglo-Saxon law developed less dependent on the latter (hence the differences in terminology and some special legal institutions);

3) Anglo-Saxon law does not know the division into "public" and "private" and therefore has a certain "aversion" to administrative justice; public institutions and officials are liable for their actions before the same court as private individuals.

The difference between the two systems is mainly of a formal nature: the same production relations, the same stage of development of the family, the unity of the principles of the political organization of society, etc. predetermine the same essence of law and in England and in France. With all this, the existence of important differences in the regulation of the same property relations, inheritance law, etc. indicates that economic relations (dependence of law on the conditions of production and exchange) determine the development of law, and ultimately have a strong impact on this development and many other factors (lying in the sphere of the superstructure over the base): historical conditions, religion, wars and mixing of tribes, as well as various kinds of accidents, including those that were determined by the characters of certain historical figures.

Author: Selyanin A.V.

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