How the Process of Law Making Differs between Common Law and Civil Law Systems - Coursework Example

Explain how the process of law making differs between common law and civil law systems, and discuss the advantages and disadvantages of each. By Course Instructor Date Legal systems in various countries in the world today fall under one of the two main categories of legal systems. These are common law and civil law systems. There are about 150 countries in the world that are known to use civil law systems. On the other hand, common law countries in the world are about 80 (Zander 2004). There are different differences between common law and civil law. However, the differences are not clear-cut. In some cases, some countries use legal aspects drawn from both civil and common law. This paper seeks to explain the differences between the law making processes in common law and civil law, and identify the advantages and disadvantages of the two legal systems. The origin of common law system can be traced back to the English Monarchy about a millennium ago. When the parliament of England was established, the royal judges were already basing their decisions on law “common” to the realm (Messitte 1999). On the other hand, the origin of civil law system is traced back to the code of law that was compiled by the Roman Emperor Justinian around 600 C.E. This was later adopted by French and German jurists (Messitte 1999). Common law system countries include the United States, England, India, and Canada, among others, while civil law system countries include China, Japan, France, Spain, and Germany, among others. There are considerable differences between the law making process of common law and civil law. Common law is developed through the decision of court, as opposed to legislative statues only (The Economist 2003). Although legislation exists in common law, the interpretation of it is done by the courts. The judges then have the duty of deciding the meaning and application of legislation. Once judges make this decision, it becomes the law. For this reason therefore, common law is more flexible, as it might change depending on circumstances and cases (Dainow 1967). According to Zander (2004), the common law system is also based on the concept of stare decisis. This concept originates from the Latin phrase “Stare decisis et non quieta movere,” which has the meaning, “to stand by decisions and not disturb the undisturbed.” In common law, decisions are referred to as “precedents.” These decisions serve a special purpose of Acting as a guide to judges for making decisions in future about a similar case. Therefore, it is a major obligation of courts to adhere to precedents, and not interfere with the established law. However, there is a provision for judges to develop new precedents, if they experience a distinct case in future, to which the existing precedents cannot apply effectively. The aspect of stare decisis is also based on hierarchy of courts. This means that the lower courts are bound by the decisions of higher courts. Therefore, the Supreme Court has the greatest authority among all courts (Zander 2004). On the other hand, in the Civil law systems, it is the role of the government to develop complete codes of law. These codes of law undergo continuous updating. This helps to keep an account of new aspects that can and cannot come before courts. Nonetheless, in civil law systems, the government is the primary source of law, unlike in the common law system (Zander 2004). In civil law systems, the law-making process involves a chain of events, starting from the drafting of the legislative Bill to its approval and promulgation. For instance, in Japan, where the civil law system is adopted, the first step in the law making process involves the drafting of the legislative Bill. This Bill is to be introduced by the cabinet; hence it is drafted by the Ministry having the jurisdiction. A ministry draws up a legislative Bill in order to introduce a new law, abolish an old law, or amend an existing law for improved performance of its administrative duties. After consultations basing on the first draft, the draft is put in statutory form, and is ready (Japanese Cabinet Legislation Bureau n.d). The second step involves examination by the Cabinet Legislation Bureau. This is done before the legislative Bill is brought before the cabinet meetings. The bureau examines the Bill intensively, both technically and legally. After examination, the minister in charge of the Bill requests the Prime Minister for Cabinet meeting regarding the submission of the Bill to the diet. The bureau will then make a final examination and revisions where necessary, before returning the Bill to the cabinet secretary. After presenting the Bill to the cabinet, objection from the cabinet means the Bill will not be submitted to the Diet. On the other hand, if the cabinet approves, the Bill will be submitted to the Diet (Japanese Cabinet Legislation Bureau n.d). After examination by the Diet, and if the legislative Bill passes both the House of Representatives and House of Councillors, it is enacted as law. The new law is promulgated within 30 days, after which it is given a serial number and signed by the state minister responsible for the Bill and the Prime Minister (Japanese Cabinet Legislation Bureau n.d). On the other hand, in Common law system, the process of law making is quite different form civil law system. In the UK, where common law applies, a Bill is proposed, and then introduced to parliament. It is then debated, and if approved by each House of parliament, it receives Royal Assent and becomes law. This is known as an Act. Any member of parliament can introduce a Bill. A Bill can however not be introduced, until it has been cleared by the PBL committee (House of Commons n.d). After approval, the Bill proceeds to parliamentary stages. During the first reading, the Bill is not debated. The Bill will be debated in the second reading. The committee stage involves scrutinizing the Bill. The PBC may propose changes to the Bill or add new material to it. The next stage is the report stage or consideration in the commons. This discusses amendments to the Bill. In the third reading, there are no amendments. In the next stages, the two houses agree on the Bill before it can be made an Act. If accepted, the Bill receives Royal Assent and becomes an Act (GOV.UK 2013). There are both advantages and disadvantages to the civil and common law systems. A major advantage of the common law system is that this system is characterized by equity. In common law, precedents are adhered to. This therefore, enables all people participating to be treated equally. In this case, there are common legal principles, which apply to each person, regardless of their position or status. Therefore, in countries where power and status are valued, this value diminishes when common law system applies (Messitte 1999). Another advantage of common law lies in its aspect of expedience. In common law, the decisions are based on past judgements. This therefore, makes it convenient for one to follow the process of law making. In this case therefore, there is predictability, as people know what to expect, basing on previous judgements. Therefore, this process is easier and highly practical. It lacks strict rules, but bases on real situations that people have already experienced previously (Laeuchli 2007). There is also the aspect of efficiency in common law systems. In making a decision, a basis on which to make the decision is already provided. This therefore, makes the process to be fast. Therefore, this system exhibits higher efficiency, as compared to other non-precedence based systems. In addition, the decisions are based on a precedent, hence are highly valid (Laeuchli 2007). In the contrast, a major disadvantage of common law systems is that they might promote poor decisions. This is based on the fact that common law systems are based on following precedents. Therefore, if a previous decision was poor and was never changed, if the next decision follows the poor decision, there results a perpetuation of poor decisions. Since these also take a long time for changes to be done, the poor decision will be upheld (Dainow 1967). Another disadvantage of common law systems is that there arises a challenge when there is no precedent. Since judgements are based on precedents, when these are absent, the system might come to a stop. This could therefore, lead to many more problems in the system. Finally, common law systems require records. This is mainly because all courts have to adhere to the precedents, hence there is need to uphold intensive records. Additionally, there is need for uniform indexing methods for the ease of accessing the cases, as well as past decisions (Zander 2004). A major advantage of civil law system is based on its legal philosophy. This features a written constitution, which consists of laws on different aspects. In making decisions, judges are expected to draw on the existing codes. This therefore, does not allow for laws made by judges. This therefore, allows for a more stable and representative legal system. Another advantage is that when a statute in civil law system is deemed unjust, it is possible for the legislature to change or rewrite it (Merryman & Perez-Perdomo 2007). A major disadvantage of civil law system is lack of flexibility. It is quite hard for civil law to evolve and address situations that might come up due to scientific changes, or changes in cultural and social norms of people in a country. This is mainly because civil law is textual, and can only be written by a legislative body. Therefore, a legislative body cannot enact laws within a short time to address urgent situations that might arise (Picker 2008). In conclusion, this paper has focused on common and civil law systems, their law making processes, and advantages and disadvantages. These exhibit differences in their features, as well as the sources of their laws. While common law is developed through the decision of court, as opposed to legislative statues only, in civil law system, it is the role of the government to develop complete codes of law. In addition, there are various advantages and disadvantages for both legal systems. For this reason, it might not be possible to determine which legal system is superior to another. This is mainly because these systems have continued to serve well the different countries that have adopted them. Works Cited What is the difference between common and civil law? 2013, The Economist Newspaper NA, Inc, London. Dainow, J 1967, “The Civil Law and the Common Law: Some Points of Comparison,” The American Journal of Comparative Law, 15 (3): 419-435. GOV.UK 2013, “Legislative process: taking a Bill through Parliament,” Accessed 4 April, 2014 < https://www.gov.uk/legislative-process-taking-a-bill-through-parliament> House of Commons n.d, “Making Laws,” Accessed 4 April 2014, < http://www.parliament.uk/documents/commons-information-office/Brief-Guides/Making-Laws.pdf> Japanese Cabinet Legislation Bureau n.d, “The law Making Process,” Accessed 4 April 2014 < http://www.clb.go.jp/english/process.html> Laeuchli, U.M. 2007, "Civil and Common Law: Contrast and Synthesis In International Arbitration", Dispute Resolution Journal, 62 (3): 81-85. Merryman, J.H. & Perez-Perdomo, R 2007, “The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America,” Stanford University Press, London. Messitte, J. P 1999, “Common Law V. Civil Law Systems,” USIS, Issues of Democracy, USIS E-Journals, Accessed 4 April, 2014 Picker, C 2008, “International Law’s Mixed Heritage: A Common/Civil Law Jurisdiction,” Vanderbilt Journal of Transnational Law 41:1083–1140. Zander, M 2004, “The Law-Making Process,” Cambridge University Press, New York. Read More