Differences of the Anglo Saxon with the European Continental Legal System ~ Understand on Advocate Profession In Indonesia and Related Lawyer Issues
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Saturday, August 22, 2009

Differences of the Anglo Saxon with the European Continental Legal System

Differences of the Anglo Saxon with the European Continental Legal System
There is a very fundamental difference between the legal system of Continental (European) and Anglo-Saxon (U.S.) legal system . In the continental legal system, the philosophy appear in nature-that is repressive, that always tends to protect the powerful. This may be understood because the power (that time) was the colonial Dutch who want to clear and maintain his power through enforce various law or legal system.

Anglo Saxon legal system in addition of course there is a repressive nature, but nature more emphasis on the nature of prevention. Article-The buoy is a buoy-to prevent the emergence of corruption, collusion and nepotism in all forms.

In the current the multidimensional crisis, have not arrived in time for serious reflection, to which our legal system to legal Continental Anglo-Saxon legal system for the New India in the future. Hopefully. (Cartono Soejatman)

Fundamental difference with the Anglo Saxon Continental is located on the device that used the law and the political system that is used.

Anglo Saxon System
Anglo-Saxon system is a system of law based on jurisprudence, the decisions of judges who then became the primary decision judges next. The legal system is implemented in Ireland, UK, Australia, New Zealand, South Africa, Canada (except Quebec Province) and the United States (although the state take the Louisiana legal system together with the Napoleon continental European legal systems). Besides these countries, other countries are also implementing the legal system a mixture of Anglo-Saxon, for example Pakistan, India and Nigeria to implement the system most of the Anglo-Saxon law, but also the customary law and religious law.

Anglo Saxon legal system, actual implementation is easier, especially in the community on developing countries. An opinion in accordance with the experts and more prominent lawyer used by judges, cut off in case.

Anglo-Saxon is a region of interest. Anglo-Saxon name, since the 8th century, commonly used to take the Briton, the nation that came from Germania tribes Anglia, Saks, and Yut. Perhaps, in the year 400 M of them cross over East Germany and Southern Scandinavia to conquer the nation Kelt, then establish a small kingdom 7 called Heptarchi. They convert to be christian between 596-655 M.

Anglo-Saxon history is, by Theresa Tomlinson, was a background story in the novel Wolf Girls , a fiction about a teenage girl named intrepid Wulfrun. Wulfrun children a weaver, Cwen. They live in the area of the Whitby monastery are sister Hild. Every day, Wulfrun duty goosee graze along with their friend, Cadmon, a cattle rancher. Cwen young childless life is very poor. Because the poor, he was forced to be sold by her old son, Sebbi, as a slave. At this period, slavery is still a common thing that happens. Perhaps due to the war continues between the areas of mutual hostile. People there divided into two: the free and the not-free.

History of Europe and North America to be a reference for case studies middle layer, which is known as the middle-class struggle during the 18-th century and the end of the 19th century. Two models are proposed Francois Raillon, namely Anglo-Saxon model and the continental European model, to attract follwed. Anglo-Saxon model, which according to rely too Raillon experience the history of bourgeois England and the United States, not necessarily relevant to explain the possible growth of political democratization and economic development in developing countries.

Too many push given model on the "people" dealing with "country". Raillon narrate middle layer that can grow and develop in the body of the state, because the relation between state officials and partners in the private sector. This model, he said, more suitable to describe the middle layer of the growth, especially in the former French state, including in Indochina.

The debate about the Anglo-Saxon or continental European model indeed no means too large. However, the second model was developed on the basis of the structure and nature of the world economy is far different from the economic development of the last 30 years. The world economy 30 years (1966-1996) with a far different economic past, when the information revolution has not been growing rapidly. Because the environment is different so different roles also track foreign middle layer.

The main difference is the middle layer of many other countries now have a more information on the economy or knowledge economy. Unlike the pre-1966 period, economic movement in the world now rely more on the role of (information, services, technology) rather than economic production and trade. This means that the economic stimulus is mostly done by the speed and accuracy of knowledge of the production processing and distribution of goods. Every day around U.S. $ 1.6 trillion in transactions processed foreign exchange, trade and manufacturing goods (goods with the means to make hands) "only" about U.S. $ 600 billion. This means that the layer in the middle part of the largest foreign expert processing of the brain processing muscle. So middle layer of the present is not more trade 1940s or 1950s who became the owner of land, capital, and labor. Middle layer of Indonesia is now the brain is made up of workers (engineers, lawyers, accountants, broker capital market, medical specialist). Their loyalty is to the professional expertise, not to particular company.

On the other hand, Friedman does not analyze further the principle that democracy is not a practical system for each country with the same recipe, that this is visible from the continental tradition and Anglo-Saxon. Even now Nicholas Syarkozi want more French-like American democracy. That is, the development of democracy more closely with the trend of the relative or something to come and delayed, as revealed philosopher Derrida. Temperament and inability to see the condition of the Middle East that caused the failure of the mission the United States. Basically, the people reject the Middle East of a prestigious project for democracy, freedom, and not because of values that contradict, but more due to the act permissive the United States. In principle, the Arab heterophobia not more than the United States.

Fundamental difference with the Anglo Saxon Continental is located on the device that used the law and the political system that is used.

One of the areas of law that regulates the rights and obligations of the law on the subject and the relationship between the legal subject. Also called the civil law or private law as a public opponent of the law. If you set the public law matters relating to the state and the public interest (such as politics and elections (the law governing the state), the activities of day-to-day (administrative law or state administration), crime (criminal law), then set the civil law relations between residents or citizens everyday, such as someone adulthood, marriage, divorce, death, inheritance, property, business activities and actions of other civil.

Continental law system
Continental European legal system is a system of law with the characteristics of the various provisions of codification law  that are systematically more will be deciphered by the judge in the application. Almost 60% of the world's population live in countries that follow this system of law.

System law which is also known by the name Civil Law is derived from the Roman then developed to France. It development begins with the Roman occupation over France. This system is practiced in the interaction between the two nations on behalf to regulate their interests. This process lasted many years, until the French state-own adopted this legal system for a nation on its own.

French nation to bring this system to Holland, with the process of the same as the entrance to the French. Continue to develop this system Italy, Germany, Portugal, Spain, and so forth. This system was developed to all mainland European continent. Civil law in Indonesia is based on civil law in the Netherlands, especially in civil law during the Dutch colonization in Indonesia.

This post has 2 comments:

ali said...

Does business law also use these 2 systems? And what system is used in international arbitrage? Thanks alot for your enlightment.

Indo-Lawyer said...

@Ali, The practice of international arbitration has developed so as to allow parties from different legal and cultural backgrounds to resolve their disputes, generally without the formalities of their respective legal systems. More detail here: http://en.wikipedia.org/wiki/International_arbitration

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