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Common Law v. Civil Law


By: Terry Ahtziry Cardenas Banda, lawyer and former professor.

The United States and Mexico have a very different history; their legal system differs greatly because of their historical process. The United States was introduced to the Anglo-Saxon family of law, which is better known as common law. On the other hand, Mexico comes from the Neo-Roman legal family that comes from Roman law and is commonly identified as civil law system.

It is incredible how two neighboring countries have a large number of differences, including their history, their public policies and without a doubt their legal system, but of course there are also some similarities.

The common law is a legal system that is born in England with the decisions of the Courts. The common law is a system eminently based on jurisprudence, meaning that the main source of law is the precedent.

The main characteristic of US law is that the judges make the law, “judge-made law.” The US Congress promulgates laws for the people, however the last word if these laws become a dispute will be the Court and, as the highest judicial body, the Supreme Court of the United States.

One of the most important aspects of the US system is that US Supreme Court rulings have a heavily weigh on the US legal system. The Supreme Court is a very important judicial body; it plays a significant role in the American legal system since its decisions are the ones that decide the course of the country. The American constitution is concrete and short, but at the same time has its ambiguities, is when the Supreme Court appears, because it is the one who is destined to interpret it and decide in those issues that the Constitution does not delimit clearly. Likewise, the Supreme Court interprets and decides the constitutionality of the different laws that are promulgated by the Congress of the US or the States congresses. In addition, the states have their own sovereignty and wide jurisdiction to legislate in any matter that is not of federal scope. It is important to emphasize that the American Constitution is the main law of the land, any decision and inferior law must go according to what is established in it.

It is true that in recent years the United States has codified the law, however, the decisions of the courts have a greater legal weight and the decisions of the Supreme Court have a binding value for all citizens.

On the other hand, the mexican juridical system is located within the neo-roman family that descends of the Roman Law and was passed to Mexico through the Spanish conquest. The main feature of the Mexican legal system is that it is based on codification, the law is created through the enactment of laws of the Congress of the Union, the supreme law of the nation is the Political Constitution of the United Mexican States, and the Mexican Courts are obliged to abide and follow what is established on the constitution and codes.

In Mexico, the decisions of the Supreme Court of the Nation also have great legal value, but unlike the United States, they are only obligatory for the parties involved in the resolution, in order for the decision to have a mandatory value for the all nation they must be five resolutions in the same sense on the dispute of an issue, that binding decision for all citizens is called “jurisprudence”. The Mexican jurisprudence is assimilated to the American precedent with the difference that the precedent is binding for all citizens by itself.

The biggest difference between the two systems is that the American system of law is established by the judge and in the Mexican system the law is established by the codes. In the United States the courts create the law and in Mexico the law is created and the courts are limited to comply with the law.

Finally, it should be mentioned that in the last decades these systems have been evolving and are more flexible to what they were one day, for example, today the United States codifies the law and Mexico has a resource that allows the court to create binding precedents.

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