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Published: Fri, 02 Feb 2018
Common Law Tradition Of Criminal Justice
Compare And Contrast The Common Law Tradition Of Criminal Justice With The Civil Law Tradition
According to Fairchild (1993: p.2) criminal justice systems emerged slowly over the centuries in response to the needs of the local people, as a result of individual efforts to improve upon the emerging system and also as a result of particular historical events. These systems evolved through efforts to establish a ‘safe environment’ in which people can dwell without fear of threat to their person or property, and as a way to deal with those who disturb the societal equilibrium, and who put citizens at risk of harm or subject them to fear, and in dealing with these people, to restore equilibrium and also to satisfy the community’s need to see that justice had been served. Furthermore, there are estimated to be over 170 separate nations in existence, each with their own legal and criminal justice system, (Fairchild, 1993: p.2) with de Cruz (1999: p.3) suggesting that there is at least 42 legal systems in existence in the world, with ‘comparative law’; the “systematic study of particular legal traditions and legal rules on a comparative basis”, focusing mostly on the world’s three ‘major legal families’; the ‘Civil Law’ system, the ‘Common Law’ system, and the ‘Socialist System’. Each of these legal systems have various ‘legal traditions and even sub-traditions, which upon examination give a clearer picture of how a particular legal system has evolved or developed.
This paper will therefore look at the general features that differentiate two of the major legal traditions in order to compare and contrast the common law tradition of criminal justice with the civil law tradition.
A legal tradition, according to Merryman, (1969: p.3) is a “set of deeply rooted historically conditioned attitudes about the nature of law, about the role of law in the society, and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected and taught. The legal tradition relates the legal system to the culture of which it is a partial expression. It puts the legal system into cultural perspective.”
There is a general consensus that there are four main legal traditions in the world; Common, Civil, Socialist, and Islamic. (Fairchild, 1993; Merryman, 1969; Smith & Natalier, 2005) These legal traditions are put in place to provide all citizens with rules with which they have to adhere to in order for society to run effectively.
Common Law Tradition Background
Source Of Common Law
Common law “Evolved from the English Monarch’s use of the royal judges who over many years have built upon other judicial decisions. These decisions (case law) are used as a primary source for law in common law systems” David and Brierley, (1985) as cited in (Sworden, 2006, p: 18) “The date commonly used to mark the beginning of the common law tradition is A.D. 1066, when the Norman’s defeated the defending nations at Hastings and conquered England” (Merryman, 1969, p: 26)
“ As a result of the remarkable expansion and development of the British Empire during the age of colonialism and empire, however, the common law was widely distributed. It is today the legal tradition in force in Great Britain, Ireland, the United States, Canada, Australia, and New Zealand, and has substantial influence on the law of many nations in Asia and Africa” (Merryman, 1969, p: 4)
The common law according to (Merryman, 1969, p: 26)“ is an unsystematic accretion of statutes, judicial decisions and customary practices, is thought of as the major source of law” and because it’s written by judges and not elected politicians it is know as the unwritten law. Therefore common law foundation was built upon case by case.
Civil Law Tradition Background
According to Apple and Deyling (1995: p.1) the most dominant legal tradition in modern times in the majority of European countries and in all of central and South America, as well as in some parts of Asia and Africa is Civil Law. Furthermore, they exert that civil law tradition is not only older than the common law tradition, but it has a wider geographical distribution, and is said to have a greater global influence than that of the common law tradition.
Civil Law is rooted in “the written law and legal institutions of Rome”, deriving its name from “the jus civile, the civil law of the Roman Republic and the Roman Empire”. (Apple & Deyling, 1995: p.3) The fundamental contributors to the establishment of these laws were the legal experts of the day; the “learned in law”, whose influence weighed heavily on the development of the Roman Legal System.
Two great developments in the shaping of the civil law was the production by the Roman Catholic church of a detailed and comprehensive principles of ecclesiastical law, and the coming into being of the ‘law merchant’ designed to govern how commercial transactions were to be carried out by the increasing ‘commercial classes’ resulting from the expansion of trade in Europe’s towns and cities. (Apple & Deyling, 1995: p.3) However, it wasn’t until the sixteenth century that civil law truly took root with the “formal, comprehensive codification of an entire body of law” beginning in France and Germany. (Apple & Deyling, 1995: p.12)
Sources Of Civil Law
The civil law tradition was largely inspired by the Romans and is sometimes referred to as ‘Romano-Germanic’, ‘Roman’, or ‘Continental Law’ due to its historical background. (Dammer & Fairchild, 2003: p.51) The primary element of civil law was that laws were written into a collection and codified. “ The civil law evolved out of lectures and debates on the value and use of classical Roman Law for modern Europe by University scholars during and after the Renaissance”. (David and Brierley 1985, as cited in Sworden, 2006: p.18) Therefore, because the civil law was constructed by scholars after lengthy debates, as opposed to the common law which was determined by judges, many people believe that the civil law is far superior to the common law, which to them is “relatively crude and unorganized”. (Merryman, 1969, p: 3) According to Merryman (1969) there are three major law traditions, ‘civil law’, ‘common law, and ‘socialist law’. And of the three he argues that civil law is the most “widely distributed and the most influential of the three”. (Merryman, 1969, p: 1) He states this because “the civil law tradition is the dominant legal tradition in most of Western Europe, all of central and South America, many parts of Asia and Africa, and even a few enclaves in the common world (Louisiana, Quebec, and Puerto Rico)”
The civil law only recognises ‘statutes’, ‘regulations’ and ‘sources of law’ and is based on a strict separation of powers, between the legislative and the judicial. The judge in civil law jurisdictions must resort only to the ‘law’ when deciding on any particular case, he cannot look to previous cases or articles by legal scholars for judicial guidance. The strict separation of powers was put into place to prevent any kind of abuse of power. Therefore, civil judges can only make a decision based on written law (codes, statutes). Common law judges, on the other hand, use the doctrine of stare decisis “whereby they look at similar cases and base their decisions on what was done previously by another judge”. Merryman (1969,p: 24) Those who favour the civil law tradition may argue that the civil law tradition is a fairer system in that the judge cannot use his own discretion when passing judgement, as he has to stick to the written law. Furthermore, the civil law tradition with its written laws helps clarify citizens rights, because they know the law and exactly what will happen if they break a particular law, and it lets citizens know that the law that applies to them is the same law that applies to others, regardless of their position in society. It could be argued that civil law traditions, due to being written and codified, ensure a certain level of stability, certainty, and fairness, however, on the other hand it could be argued that they are rigid and inflexible and that the older written codes may not have the answers to today’s problems, unlike the common law which can adapt quickly to change due to it’s flexibility.
Furthermore, it could be argued that constitutionalism in civil law jurisdictions weakens the ‘dogma of strict separation of powers’ as it puts some of the power back in to the hands of the judges, as a civil judge can void a statute if he finds it to be in direct conflict with the constitution. (Merryman, 1969, p: 25) Therefore it could be argued that the ‘dogma of sharp separation of powers’ is flawed, as the state does not have the monopoly on lawmaking, because civil law judges can change laws just the same as common law judges under certain conditions.
Differences Between Common And Civil Law Traditions
There are commonly two points of difference referred to when comparing civil law and common law traditions; firstly, civil law is codified, with an extensive listing of the rules and principles that govern ‘legal reasoning’ and the execution of justice, whereas the common law is established on ‘stare decisis’; “the legal principle of determining points of litigation according to precedent”; (Krishnan, 2009) and secondly, the civil law was heavily influenced by Roman Law, whereas in common law, that influence is a lot less pervasive.
Criminal procedure differs greatly between civil and common law. The civil law is often described as being ‘inquisitorial’ in that the main actors in the system are the judges and staff of the courts, with the judge being charged with the duty of gathering supplementary evidence to that which the counsel for defence and prosecution produce, with answers to interrogatories presented in written depositions. When all this evidence has been presented, the judge peruses it to reach a decision as to whether the accused is guilty beyond all reasonable doubt. On the other hand, the common law is described as being ‘adversarial’ or ‘accusatorial’ in that a contest is staged between the prosecution and the defence who represent the accuser and the accused respectively, with both sides presenting evidence that they believe to be relevant to their case, with the judge essentially acting as a referee to ensure that the contestants ‘play by the rules’. The judge thereby advises the jury and it is they who require to be convinced beyond reasonable doubt, and not the judge. The evidence is presented to the jurors orally, in open court, by the witnesses for the accuser and the accused. (Pakes, 2004: p.81; Apple & Deyling, 1995: p.1) Even in cases were the right to trial by jury is waived by the accused, the trial proceeds in the same manner as if the jury were actually present in court. In the ‘inquisitorial’ model, the civil law is based on code, preventing the judges from interpreting the law, but rather ensuring that they follow a strict predetermined set of legal rules. Therefore, in agreement with Apple & Deyling, (1995: p.6-7) the judges role in civil law is not for the development of new principles, rules and legal procedures, that may be required to meet changes in society, as is the case with the common law tradition.
Civil law judges are “appointed from a school of judges, and need not have practiced law before being appointed. They are part of the civil service and preside over an inquisitorial system of justice that is based on the idea that the truth will best be determined by the trial judge actively assisting the lawyers in the case” (Katz, 1986, as cited in Sworden, 2006: p.18) Generally a civil law judge starts of as a student of law in university, and then takes a state exam and if he passes can become a junior judge. The junior judge would then begin his career in the lower courts and could eventually work his way up the hierarchy of courts depending on his capabilities. Whereas, a common law judge would have to graduate from law school, after which they would decide to either have a career in private practice or government. After many years of practicing law, they would be appointed or elected as judges on the basis they had build up their reputations due to their legal success or that they had political backing from certain individuals with influential power. (Merryman, 1969, p: 35)
The role of a judicial in civil law is a mechanical one in that they are the “operator of a machine designed and build by the legislators”. (Merryman, 1969, p: 38) The judicial in civil law have to work within a restricted environment in that they are not allowed to use their own discretion or interpret the law, unlike common law judges whose job is to interpret the law. However, the judicial in civil law systems do take an active part in the court proceedings, their responsibilities are different to those of common law systems in that they have “broader powers in terms of questioning the parties to the proceedings, and investigating the case” in order to actively seek the truth. (Smith & Natalier, 2005) This is in stark contrast to the common law judges who “Preside over an adversarial system that is based on the idea truth will best be determined by lawyers presenting their respective cases unhindered by the interference by the trial judge” (Sworden, 2006, P: 18)
Common law judges do not have the same restrictions placed upon them as civil law judges, therefore allowing the common law judge to use his own judgement in deciding which particular punishment is needed based on previous cases that have gone before him. It could be argued that the civil law tradition is very structured, rigid and uncompromising leaving no room for leeway, and that it lacks the flexibility of the common law tradition in that their judges are restricted in the interpretation of the law, and can only enforce it.
“Legal tradition was originally created and has grown and developed in the hands of judges, reasoning closely from case to case and building a body of law that binds subsequent judges through the doctrine of stare decisis, to decide similar cases similarly” (Merryman, 1969, P: 35)
Both inquisitorial and adversarial trials are similar in that both seek to establish the truth, however, both systems are set up differently in order to achieve this. Five main differences between both systems are how the trial is conducted are the role of the state; the role of the judge; rules of evidence; role of the prosecution and the defence; and how they deliver their verdicts. (Pakes, 2006, p: 78)
In civil law the role of the state is prominent and takes an active role, in that it takes responsibility for distributing justice. The state investigates crime and the accused in order that justice is carried out. The civil courts use inquisitorial trials where the judge and the prosecution work together and investigate, while the defence’s role is limited. There is a case file (dossier) composed by the investigators that contains all the information that is needed to go to court. This information is made available to the court beforehand, and much of the courts decisions are based on it. (Pakes, 2004, p: 75) However, in common law traditions the state is not relied on to the same extent as civil law and the state does not disperse the justice but instead provides a platform for justice to carried out. Adversarial trials present their cases orally in court where both the prosecution and the defence initially examine witnesses, which can be highly confrontational and quite dramatic. (Pakes, 2004, p: 74)
In civil law traditions it is the judge who examines and questions the accused and the witnesses, both the prosecution and the defence are there to support the judge in order for him to get to the truth. In common law traditions it is the job for both the prosecution and the defence to question the witnesses not the judge. Furthermore, witnesses can only be guided on questions; they can’t be asked any ‘leading’ questions. (Pakes, 2004, p: 78)
Rules of evidence tend to be very limited in inquisitorial systems. All evidence is presented at trial from both sides in order that court can make an informed decision based on all the facts presented. And the courts are trusted, based on their knowledge in deciding what they believe to be relevant or not. However, whereas defence lawyers in adversarial systems can withhold certain information like previous convictions if they feel that it will damage their client’s case, this would be unacceptable in inquisitorial trials. (Pakes, 2004, p: 79)
In adversarial trials the verdict is reached in private, however, in inquisitorial trials the verdict is reached in public. Furthermore, in inquisitorial trials judges are often required to explain their verdict to the court, whereas in adversarial the jury are forbidden from doing so. (Pakes, 2004, P: 79)
Similarities Between Common And Civil Law Traditions
Despite definite differences between civil and common law, there is a tradition that is common to both; they were both influenced and shaped by the culture of the Western Europeans, and as such, embody many of the common values found in western societies. (Anon, 2009)
Although there are differences in terms of codification versus precedent between civil law and common law traditions, this was not always the case. According to Apple & Deyling, (1995: p.7) the ‘early Roman Jurists’ of civil law were “case oriented and not dedicated to building a system of law”, similar to the way common law has evolved. It was in fact the Italian ‘glossators’ who put greater emphasis on building a structured ‘legal form’ based on a set ‘legal doctrine’, and when that failed to address the issues of the day, local custom was adapted and adopted into the system. The difference however is that his filling of the gaps in the legal system was carried out by ‘law experts’; the academics, and not by the practitioners, as is the case with common law.
In agreement with Apple and Deyling, (1995: p.35) the distinction between both common law, and civil law traditions, is somewhat blurring, and there is an apparent convergence of both traditions, with some features of the civil law traditions being integrated into common law traditions and vice versa. However, it is highly unlikely that both will merge to a point where it is unrecognisable, and there will always remain, for the near future, distinct and significant differences that will allow comparisons to be made of these two major legal traditions.
Apple, J.G., & Deyling, R.P. (1995) A Primer On The Civil-Law System. New York: Federal Judicial Center.
Dammer, H.R., & Fairchild, E. (2005) Comparative Criminal Justice Systems. California: Cengage Learning.
de Cruz, P. (1999) Comparative Law In A Changing World. (2nd Ed.) London: Cavendish Publishing Ltd.
Fairchild, E. (1993) Comparative Criminal Justice Systems. California: Wadsworth Publishing Company.
Merryman, H.J. (1969) The Civil Law Tradition: An Introduction To The Legal Systems Of Europe And Latin America. California: Stanford University press.
Pakes, F. (2004) Comparative Criminal Justice. Devon: Willan Publishing.
Smith, P., & Natalier, K. (2005) Understanding Criminal Justice: Sociological Perspectives. London: Sage Publications Ltd.
Sworden, J. P. (2006) An introduction to Canadian Law. (2nd Ed.) Toronto: Emond Montgomery Publications Ltd.
Krishnan, M.S. (2009) Law Of Precedents Lecture. Madras High Court. http://www.hcmadras.tn.nic.in/jacademy/articles/LAW%20OF%20PRECEDENTS-by%20Thiru%20M.S.%20Krishnan,%20Senior%20Advocate [Accessed on: 02.11.2009]
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