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1. Why is the name “Comparative 12.

What are the types of information


law” more popularly used than other sources used in activities of
names? comparative law? Analyz the natures
2. Please describe the different views of them.
on the nature (bản chất) of 13. Please present the issues that
comparative law? What view do you need to be avoided in researching
support regarding the nature of and comparing foreign laws.
comparative law and why? 14. Please describe the steps to carry
3. How many popular views are there out the following comparative work:
on the concepts (khái niệm) of Comparative study of regulations
comparative law? What do these governing marriage conditions in
views have in common? Vietnamese and French laws.
4. Analyze the characteristics of the 15. Please describe the steps to carry
research object of the comparative out the following comparative work:
law. Legal framework on marriage
5. Among the characteristics of the conditions in French law – reference
research object of comparative law, experience for Vietnam.
which one do you think has the most 16. Please analyze the content of the
important contribution for legislative principle for accessing of studying
activities? foreign law: “it is necessary to
6. Please describe the concepts, respect the hierarchical order of law
roles, advantages and disadvantages sources in the legal system of
of the methods: historical relative countries”. Give specific
comparison method, functional examples.
comparison method, normative 17. Please analyze the content of
comparison method? principles on interpretation of foreign
7. State and analyze the concept of laws when performing comparative
comparative law according to Prof. works. Give an illustrative example.
Michael Bogdan’s point of view? 18. Why when studying foreign laws,
8. In what ways does the researchers need to put the legal
Comparative Law assist the problems to be studied in a holistic
legislative work? and comprehensive manner?
9. Give an example in Vietnam to 19. What is the purpose of the
demonstrate the support of grouping of legal systems?
comparative law for legislative work? 20. Among the criteria for grouping
10. Why are countries tending to legal systems, which one is the most
increase the harmonization and important? Why?
unification of laws? How does the
comparative law support these
activities?
11. Please explain why the activities
of comparative law cannot be
separated from the study of foreign
laws?

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21. Analyze the role of each criteria 25. Analysis of conditions for
in building a map of the world legal grouping the Islamic legal system.
system. 26. Analysis of sources of Islamic law.
22. How many interpretations does 27. Analysis of similarities and
the term of “legal system” have? differences of Continental law and
What are the distinctive features of Socialist law.
these interpretations? 28. Analysis of similarities and
23. What are the different ways of differences of Continental law and
naming the concept of “legal Common law.
system” in a broad sense? Analyze 29. Analysis of similarities and
them. differences of Socialist law and
24. Indicate the development trend Common law.
of legal systems in the world. 30. Point of the concept of “mixed
legal system”. Give specific
examples.
1. Why is the name “Comparative law” more popularly used than other names?
“Comparative law” is the name that can cause confusion of the Comparative law which has its
own subject and method, similar to the way of understanding the terms "Civil Law", "Criminal
Law" ... This is a term widely used by the Law of Comparison as the original name used since its
in birth in Europe. Now, the term has been widely used and popularized by leading countries in
the field of Comparative Law research. Other countries that receive the Comparison Law also
often use this common name.
2. There are many points of view to define the comparative law but 3
common opinions are:
- The 1st viewpoint: comparative law is a scientific method. Some people say that compararive
law is just a method which is applied when researching to find the similarities and differences
between different legal systems.
- The 2nd viewpoint: Comparative is a science. Some people define that comparative law is a
science with its specific subjects and method. It studies a number of specific issues, has its own
scientific theories and has a dominant scientific method of comparison.
- The 3rd viewpoint: comparative law is both a scientific method and a science. This viewpoint is
reconciled and agreed between the first two views, however, this view is not convincing due to the
unmistakable differences between science and scientific methods.
I agree with the 2nd viewpoint because the result of Comparative law not only finds the similarities
and differences between the research subjects, but also studies the relationship between the legal
systems, explains why they have the similarities and diffences in order to develop the national
legal system and reconcile with others legal systems.
3. There are many points of view about the concept of comparative
law. But there are 3 popular views. First. 2 scholars from Germany – Zweigert and
Kozt – said that “Comparative law is comparing different legal systems in the world”. Next is the
scholar whose name is Peter de Cruz said that “Comparative law is researching the traditional of
law and regulations based on the comparasion method. Finally is Michael Bogdan, he defined
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that “comparative law is comparing different legal systems to find their similarities and
differences. Analyzing those to explain the origin and evaluate the methods.
But these views have the same features:
- Comparative Law is not a law branch
- The most important feature of comparative law is finding the similarties and differences when
comparing the legal systems.
- Comparative law does not identify with researching foreign law, it has to be compared with
others legal systems
- Comparative law has to explain the similarities and differences
4. Analyze the characteristics of the research object of the comparative law.
- Extensive scope of research: research works are usually conducted for two or more different
legal systems. Comparative law not only studying legal issues but also researches different fields
such as socio-economic conditions, politics, religion, culture ... of the legal systems studied.
- Constantly changing: the subjects of research change depending on the economic and social
development. Each stage will set out the needs of finding and researching different issues.
- Outward-facing: In a research project, there must always be the appearance of foreign laws.
- To be studied from both a reasoning and practical perspective: To ensure correctness, to
properly reflect the nature of the subjects studied.
5. In the above 4 characteristics, the characteristic "studied from both a reasoning and practical
perspective" plays an important role in legislative activity because it will ensure the subjectability
and accuracy when solving a number of problems, thereby determining whether the study is
capable of actual execution.
6. Please describe the concepts, roles, advantages and disadvantages of the methods:
historical comparison method, functional comparison method, normative comparison
method?
- Historical comparison method: A method that relies on certain historical
periods to explain similarities and differences. When using this method, the researcher will
determine how historical factors such as socio-economic, political, cultural, ideological
conditions... have affected in the past.
+ Advantage: helps to explain the origin of similarities and differences between legal
systems, and at the same time realizes the development trend of those legal systems.
+ Disadvantage: often used to study issues of the nature and characteristics of legal
systems.
- Normative comparison method: is a method of comparing legal norms, legal
institutions, legal documents between different legal systems. Often used to answer the
question: which norm in the law of one country performs the same function as another in
the legal system of the country being compared. The decisive factor is to find the
corresponding norm between the systems.

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+ Advantages: simple, easy to implement, does not require extensive general knowledge
of the legal system being studied.
+ Disadvantage: not all cases can be used: no similar rules can be found for
comparison, there are terms with similar form but different connotations, or no corresponding
legal documents can be found due to the same social issue but the laws of the countries
governed in the legal documents have different names.
- Functional comparison method: is a method of comparing solutions used in
different societies to solve the same social relations that exist in those societies. The
approach of this method goes from social relations to the regulation of law. For example,
how this problem is effectively addressed in the legal systems of country A and country B.
+ Advantage: can conduct comparison in all cases.
+ Disadvantage: requires researchers to have a thorough and comprehensive
understanding of the legal systems being compared and also economic, historical, cultural,
political, social... explain similarities and differences. In addition, there is a language barrier,
which takes a lot of time and money to research.
7. According to Michael Bogdan, Comparative Law includes:
- Comparing different legal systems to find similarities and differences
- Using identified similarities and differences, explaining their origin, evaluating solutions used
in different legal systems, grouping legal systems into other legal family lines or studying the
important issues of legal systems and
- Dealing with methodal issues arising related to the above tasks, including methodal matters
related to the study of foreign laws
- Building the basis of methods to conduct research on intrusive laws, absorb legal values and
legal rules among world legal systems.
8. In what ways does the Comparative Law assist the legislative work?
Comparative law supports legislative work in the following aspects:
- Assisting in coming up with ideas on new enacted or amended laws
- It is possible to anticipate the possibility of the impact of a particular law or legal solution on
social relations without having to conduct trials
- Expanding the source of legal solutions to solve the specific problems that the laws of
countries are facing, not to be constrained by the view that the subject matter can be solved in
one way only.
9. Give an example in Vietnam to demonstrate the support of comparative law for legislative
work?
The most obvious manifestation: legal transplant.
Civil Law, Criminal Law, Administrative Law, Constitutional Vietnam also have. Vietnam's
Constitution is accessible from the U.S. Constitution, France Constitution, and human rights
treaties. Or in the criminal field, Vietnam moves from firing to lethal injection for death penalty
crimes noted in the law on judgment enforcement as a manifestation of receiving the law in the
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humanitarian treatment of judgment sufferers. Or calculating how many female members per
National Assembly session is also a manifestation of the reception of international standards to
improve the Vietnamese legal system.
10. Why are countries tending to increase the harmonization and unification of laws? How
does the comparative law support these activities?
Because these two activities are aimed at eliminating differences in specific areas but differing in
that if the harmonization is to try to reduce differences in the same field of law, the goal of
unification is to create unified legal provisions for unified application in different countries.
Comparative law supports these two activities in the following aspects:
- Identifying the common ground of legal systems to build a better legal solution and easier to
apply.
- Helping lawyers with important knowledge and skills to participate in the negotiation process
in order to harmonize or unify the law.
- Support countries to overcome psychological barriers when accessing general applicable
regulations and abandoning national laws.
- Provide a reasoning basis for developing legal rules that can be applied in many different
countries.
11. Please explain why the activities of comparative law cannot be separated from the study
of foreign laws?
Between comparative law and researching foreign law, they have same research object and have
a huge supporting role for each other. In which, foreign law research activities provide an
important source of information about different legal systems, which is an indispensable basis in
law research and comparison activities. On the other hand, in the opposite direction, the Law on
Comparison provides the necessary legal principles to ensure that foreign law research activities
are carried out easily, scientifically and objectively. These two areas are closely related, have a
back-and-back impact and need to be studied in parallel to improve and support each other in
knowledge and research skills.
12. What are the types of information sources used in activities of comparative law? Analyz
the natures of them.
There are two types of information sources: the first (the primary source) and the second (the
secondary source)
- The primary source: is the source of law in the national legal system. There are different forms
such as legal documents, court precedents, legal practice ... This is the first source of access when
studying foreign laws and is an official channel that shows the content of foreign laws.
- The secondary source: is a source of indirect presentation of the contents of foreign laws
through works in the field of legal science. Shown in the form of law textbooks, the theses
specializing in law, scientific commentaries, research works ... Collected by many different
channels such as via the Internet, types of books, legal specialized magazines. This resource may
have subjective opinions of the writer when studying the law.

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13. Please present the issues that need to be avoided in researching and comparing foreign
laws.
Some mistakes to avoid when studying and comparing foreign laws:
- Mistakes in identifying and collecting sources of information. The use of the law is not really
being operated by foreign countries, leading to research works becoming meaningless and
worthless. Therefore, it is necessary to ensure the up-to-date and accurateity of information
sources on foreign laws.
- Mistakes by assumptions about similarities and differences between legal phenomena without
proving by the specific contents of foreign laws. Since each different country has a different
legal system, the use of legal terms, the content of legal institutions is sometimes also different.
- Not objective in terms of thinking when studying foreign laws. The differences in laws between
countries are still huge, otherwise objective will easily lead to a wrong understanding or even
a misunder understanding of foreign law.
14. Please describe the steps to carry out the following comparative work: Comparative
study of regulations governing marriage conditions in Vietnamese and French laws.
- Step 1: Identify the legal issue to be compared is about the conditions of marriage and
formulate the hypothesis for comparative research.
- Step 2: Selecting the legal system for comparison: Vietnamese law and French law
- Step 3: Describing the two legal systems selected on the issue of marriage conditions
- Step 4: Identify the similarities and differences between the two legal systems, set out the
system of criteria for comparison
- Step 5: Explaining the origin of similarities and differences, analysising and evaluating the
advantages and limitations of solutions to the marriage conditions of the two legal systems.
15. Please describe the steps to carry out the following comparative work: Legal framework
on marriage conditions in French law – reference experience for Vietnam.
- Step 1: Identify and clarify the contents of concepts related to marriage conditions
- Step 2: Present and describe the contents of legal rules and regulations of the legal system of
France and Vietnam related to marriage conditions. May include presenting socio-economic
and cultural issues along with legal solutions associated with those conditions
- Step 3: Identify similarities and differences
- Step 4: Explain the origins of similarities and differences
- Step 5: Affirm comparative results and reach final conclusions and practical and experienced
solutions for Vietnam. Develop legal solutions that according to researchers are the most
optimal for the legal system of Vietnam.
16. This principle requires researchers in the process of legal
research to respect the hiearchical order of law sources both in the
reasoning and practice of the legal system studied.

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For example, when civil law lawyers study Common Law, they must focus both on court
precedents – the main source of law, but also not ignore the source of written law because they
are increasingly occupying a very important position in countries under the Common Law system.
17.In practice, in different legal systems, the concepts or inner
scope of concepts in different legal systems may have a different
understanding.
For example, when conducting legal explanations, British-American courts tend to explain legal
rules based on the spirit of the text, while judges of the Civil Law system often explain softer texts
and take into account the purpose of enacting laws based on historical approaches or logical
arguments...
18. Research must be placed in all legal matters as well as other
relevant legal aspects: from direct to indirect regulations, from
regulations issued or recognized by competent state agencies to
those applied in practice. In addition, it must be placed in the
context of politics, economy, society ... of the country studied.
Because of this, the researcher has the right view and a
comprehensive understanding of legal issues in the legal system of
countries.
19. The main purpose is to facilitate the research and teaching of
foreign laws into law comparison. Knowing which legal system of
country is studying, the researcher can go into studying specific
legal issues without spending time and effort to study the
fundamental characteristics of the legal system.
Grouping helps researchers receive legal systems in the world in a scientific and selective way.
Thereby, studying further the nature of legal systems in the world. Countries can find solutions to
improve their legal system to suit the realities of legal life.
20. No criterion is the most important when dividing legal systems.
Because such division can completely lead to duplication,
contradiction and not achieving the purpose of division. The legal
systems are similar and different, if only based on one criterion, the
classification will not be high. For example, if only using the criteria
of legal origin, considering the legal systems derived from Roman
law, the Socialist legal system and the continental European legal
system originated from Roman law but differed in nature. In
addition, for the Islamic legal system, it is impossible to compare
according to the general criteria because this system has its own
distinctive characteristics.
21. There are 6 criteria for dividing legal systems in the world:
Legal forms: characteristics of the legal form in each legal family are influenced and
regulated by their own origins, which can basically be based on the characteristics of the form
of law commonly used in that legal system. If the use of legal documents is mainly, it will
belong to the socialist legal system or continental Europe.
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Origin: Most countries have a legal system derived from ancient British law or ancient Roman
law. Different legal systems are less or less influenced by either or both of these sources of
law.
Making-law role of the courts: There are legal systems in which judicial authorities are only
allowed to apply law, while in other legal systems, court judgments and decisions can become
court precedents, which are used as sources of law to apply to similar cases.
Recognition of division of public and private law: Some countries will have the view that it is
necessary to divide public and private law because the relationship between equal people in
rights and obligations should be adjusted differently from the relationship between inequality
(state - citizen). However, some other countries argue that this division is not necessary for the
tendency to aggregate trial decisions by public and private rights defined through property
rights.
Roles and the balance between substantive and procedural laws: This criterion greatly
affects the training of law and the structure of the legal profession in different legal systems.
Depending on the legal system, substantive laws or procedural laws are more preceded.
Levels of Codification: For some countries, the importance of the technique of codification is
a top priority. However, in other legal systems, the codification is more limited and to a lesser
extent because they focus on developing a system of precedents.
22. The legal system is a concept that has many different content
depending on the context in which the term is used. Accordingly,
there are two contexts that are often used by scholars when it
comes to the legal system. Firstly, the term "legal system" is used in
connection with the laws of a country or territory. In this context,
the legal system is generally understood as the overall legal
regulations of the country or territory, or even includes legal
institutions such as courts, legislatures, administrative bodies,
jurisdictions... Secondly, the term "legal system" is also used to
mean the laws of a group of countries or territories for which their
legal system has certain commonality. With this context, the legal
system can be a group consisting of many national legal systems
that have similarities in the history of formation, legal sources,
structure of the legal system,... For example, the socialist legal
system, the Islamic legal system ...
23. What are the different ways of naming the concept of “legal system” in a broad sense?
Analyze them.
- Traditonal of law: is a term used to mean legal groups born in the same cultural, ideology
and geographical spaces. The legal system with the same origin will be classified as a legal
tradition. The term is used in works that focus more in comparision.
- Family of law: the nature of this term helps to identify the differences between different legal
groups in the world, emphasizing the "inheritance” in the legal system of countries.This term
implies grouping elements, emphasizing the origin factor.

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24. Nowadays, the trend of internationalization has become a
common trend that makes countries related and interdependence in
many fields, especially in the field of economics and along with the
process of expanding relations in mutual cooperation, then the legal
systems develop in the direction of closer together. Expressed
through the reception between the traditions of Common law and
the tradition of Civil law, or the reception of Islamic law with the Civil
Law and the Common Law.
25. Analysis of conditions for grouping the Islamic legal system.
Two basic, prerequisites for defining a country under the Islamic legal system include:
+ Islam is the national religion of the country, (also known as an official religion, or national
religion) is the official system of religion or belief of a country recognized by that state.
+ Take the biblical (kinh thánh) provisions of Islam as the law, not just consider it a religion.
26. Analysis of sources of Islamic law.
+ Ijimá và Qiyas là nguồn luật bổ trợ.
Islamic law has 4 sources:
- Qu'ran: both biblical, and law, an important source of law. It is the teachings of Allah and is
recorded from what Mohammed proclaimed or reread. About 30% became legal principles.
- Sunnah: means "road that we usually go", which is the lifestyle and behavior in the life of the
prophet Mohammed. Includes specific actions, advice or prohibitions that come directly from
Mohammed. This is an important source of law after the Koran.
- Ijimá: was born on the basis of the unity of legal views of Islamic legal scholars. Used to
explain the basic types of sources.
- Qiyas is the same method of infering to explain the law. Judges may use legal precedent to
resolve a number of cases that arise later that are not mentioned in the Qu'ran, Sunnah, and
Ijimá.
Ijimá and Qiyas are sources of supporting laws.
27. Analysis of similarities and differences of Continental law and Socialist law.
- Similaries:
+ the main form of law is legislation
+ Origin of law was affected by Ancient Roman Law
+ The court will explain the law but must not "create the law". However,
with the current trend of using court precedents, the authority to enact
court precedents is usually given to the highest court
+ the substantive laws held more important role than procedural laws
+ The codification is conducted only by the highest authorities. The result
of this process is the promulgating of laws. The importance of the
technique of codification is a top priority
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- Differences:
+ The legal origins of Socialist countries in Asia are greatly influenced by
the ancient Chinese legal system - dominated by Confucian ideology
+ Countries under the Civil Law system will have the division of laws into
public and private law. As for the Socialist countries because they are
characterized by all-people ownership regime and collective ownership,
only public law exists in this legal system
28. Analysis of similarities and differences of Continental law and Common law.

Continental Law
Nội dung Common Law
Civil Law
Similarities (both use legislations and precedents)

Differences
Case law
Use of court precedents is the
Llegislations main, legislations increasingly
+ In order to ensure that the play an important role.
separation of powers is isolated, + Because in the process of
the court precedents and customs globalization, countries under
Forms of law
are no longer used much, but with Common Law must conduct
the current trend, the court internalization or apply treaties
precedent still plays a certain role. directly.
+ Derived from ancient Roman law + legislations show long-term
stability, so they are becoming
more important.

Ancient Roman
Ancient English law
+ Because most countries in
+ The origins of the law are
continental Europe are subject to
primarily based on the laws of
the prolonged dosing of the Roman
the Ancient British (Anglo
Origins Empire.
sacxong) with the customs
+ Written law is a major and formed from the development of
important source of law to regulate the community.
social relationships, the division of
public law and private law is clear.

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Judges have no right to enact laws,
There is a huge role to play in
only play the role of explaining and
making laws alongside the
Making-law role of applying the law to real life.
legislature. The judge both
the courts However, the supreme courts have
enacts the law and explains and
the power to enact court
applies the law.
precedents.
Procedural laws are more
Roles and the important than substantive
balance between Substantive laws are more laws. At the trial, the litigation
substantive and important than procedural laws between the parties will
procedural laws determine which party the
winning belongs to.
Recognize the division of law into
public and private law. According
to the model of the court system
with general jurisdiction and the
administrative court system, there
are also specialized courts.
Recognition of Do not recognize the division of
division of public + From the reason that it is public and private law. They
and private law necessary to divide public and follow the single court model
private law because the
relationship between equal people
in rights and obligations should be
adjusted differently from the
relationship between inequality
(state - citizen).
They gather laws governing the
They gather legal provisions same group of matters into
Levels of
governing the same issue, Codes of law or sets of court
codification
promulgate or amend legislations. precedents according to their
competence.

29. Analysis of similarities and differences of Socialist law and Common law.

Nội dung Socialist law Common law

Similarities: Do not recognize the division of the public law and the private law

Differences

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Case law
Use of court precedents is the main,
legislations increasingly play an
important role.
Only recognize legislations which + Because in the process of
Forms of globalization, countries under
are issued by competent state
law Common Law must conduct
agencies as sources of law
internalization or apply treaties
directly.
+ legislations show long-term
stability, so they are becoming more
important.
Influenced by the Old Soviet Law. Luật Anh cổ
+ Countries in Eastern Europe are + The origins of the law are
influenced by the Roman – primarily based on the laws of the
Origins German Ancient British (Anglo sacxong) with
+ Asian legal traditions influenced the customs formed from the
by the ancient Chinese legal development of the community.
system
There is a huge role to play in
Making-law making laws alongside the
role of the Only play the role of explaining legislature. The judge both enacts
courts and applying the law to real life the law and explains and applies the
law.
They gather laws governing the
Very high level, in a way that
Levels of same group of matters into Codes of
gathers and eliminates outdated
codification law or sets of court precedents
but inal-directional regulations
according to their competence.
Substantive Law is a means of
Procedural laws are more important
Substantive expressing and recognizing
than substantive laws. At the trial,
and interests, the procedural law is
the litigation between the parties
procedural only a means to ensure the
will determine which party the
law enforcement of the substantive
winning belongs to.
law
30. Point of the concept of “mixed legal system”. Give specific examples.
Mixed legal systems are legal systems where the laws applied are derived from two or more
different legal families. The legal systems which mixed Common Law and Civil Law are Scotland,
South Africa, the Philippines, Egypt... In these legal systems, legal regulations and institutions are
influenced by various legal traditions such as Common Law, Civil Law, Islam, Hindu. These
mixed legal systems differ in structure, the constituent legal composition of these legal systems is
not quite the same.
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For example, a mix of Islamic law and Civil Law in Turkey. Even if the Islamic state is a country
that still uses civil law, it will more or less be influenced by principles within Islam.
31. Comparison of systems of justice in the UK, the US and France

Civil law Common law

Justice in France, as well as Justice in the UK and the US, as well as other
most other European English-speaking countries, is based on a
countries, is based on a system of common law.
system of civil law.

In civil law systems: In common law systems:


 laws are written down  some of the laws are decided
in a 'code'; by legislators and written down in a
 laws are decided 'code', but
by legislators (in  some of the laws are based on customs,
parliament); which means that things are against the
 judges refer only to law and can be punished because they
the written code when have been punished by judges in the
deciding cases. past.

Civil law systems, and Common law systems go back to the legal
France's in particular, systems that developed in medieval England.
usually go back to the Before the invasion of William the Conqueror
Napoleonic Code laid down in 1066, England had no centralized legal
in 1804, although they are system. Judges acted independently
ultimately inherited from according to regional traditions, and these
Roman law. traditions were kept by following generations.

Jurisprudence Precedent

Judges are called on to Common law systems rely on the principle of


interpret the law, especially precedent, which means that if a court has
when new laws are being already made a legal decision about an issue,
applied for the first time, or judges must respect that decision in later
when new cases arise that rulings. Judges can only apply a different
haven't been covered in the ruling if a) they can demonstrate that the
past. Such decisions are issue is somehow different from the
said to 'faire jurisprudence' precedent, or b) they belong to a higher court
because they offer an than that which gave the original ruling.
interpretation that will This means that the hierarchy of courts in the
influence future legal legal system is important. The US Supreme
decisions. Court, for example, is the highest court in the
But the role of these prior country: any decisions it makes 'binds' all
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judgements is less other courts in the country, who have to
significant in civil law follow these decisions. When it ruled in 1973
systems where the judge's that the 14th Amendment, which guarantees
role is generally considered people's privacy, should be interpreted as
to be to apply the law as it guaranteeing a woman's right to abortion,
is written, with the this meant that no other court could rule that
assumption that the law in a woman didn't have a right to abortion (and,
most cases is sufficiently because the Supreme Court is the ultimate
clear in itself. interpreter of the Constitution, no legislative
body could pass a law against a woman's
right to an abortion). This decision can only
be changed by the Supreme Court itself.

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