The Rule of Precedent: Comparison between Common Law and Civil Law - Essay Example

Contrast between Common Law and Civil Law Insert Name Insert Course Title Insert Date Abstract Different countries follow different legal systems. The legal system followed in different countries depends on numerous dynamic factors. However, the shaping factors that can be said to have contributed to these developments include academic developments in legal fraternity, political systems, social dynamics, religion, colonisation and globalisation among others. One fact that emerges is that the extreme of these systems are common law and civil law. These approaches to delivering justices are traceable in Britain and continental Europe respectively. The greatest difference of the two is in terms of precedent setting and the role of judges in delivering justice. In earlier years, civil laws were highly practised in France and Rome where they had highly codified legal parameters. On the other hand in Britain it was the judge who was to determine the course of action after every concerned party had made their arguments. The overriding theme in this paper is to explore the various differences that exist between the two systems. Key words: common laws, civil laws and contrast/differences Contrast between Common Law and Civil Law Introduction The need for regulating human activity by providing consequences if the laid down procedures are contravened has evolved overtime. Moreover, the need for harmonious co existence cannot go un-emphasised. The emergence of these regulations is as a result of various dynamics in the social, political, economic, religious and environmental dynamics. Legislations have existed since man started living sedentary life in cradles of civilisation. An example of these includes hamurabi code.1 The growth of current legal systems in the world developed mainly during the medieval period onwards. The law system just as the governance and economic systems which have been developed over time have unique features that differentiate them from the others.2 The differentiating properties in these systems highlights the process adopted by these systems in delivering justice, involvement of various stakeholders and their interaction with other arms of the government. At least in comparative and summary view, most countries all over the world are governed with different sets of rule stemming from precedents set earlier and those adopted from other regions.3 Every country to an extent is unique in the form of their legal tradition which is shaped by social, historical, religious and political factors. Other aspects like colonisation and globalisation has had massive effects on the legal traditions of a country.4 Currently, most of the countries either follow two mainstream legal frameworks in isolation or in combination/ hybrid. The current legal frameworks can be classified as either common or civil law.5 The emergence of common law is attributed to early numerous developments in Britain while the development in civil law is attributed to developments in continental Europe.6 Moreover, certain countries which had distinct systems have of drifted towards these two principal approaches. Countries like Japan and Russia in their bid to be developed had to realign their frameworks into the paradigm of civil laws.7 This paper examines the concept of rule of precedent by exploring departing points between common and civil law. However, this paper doesn’t examine effectiveness and popularity, but only highlight striking differences. Historical Perspectives and Definitions Various literatures indicate that common law/ traditional law emerged in Britain while Civil law emerged in continental Europe. These frameworks emerged mostly during medieval period. Based on these historical happenings, it means that countries that were colonised by Britain are more likely to follow common laws than civil laws while those colonised by countries from continental Europe like France, Italy, Spain and Dutch are likely to follow civil law framework more than the common law framework.8 In a more precise view, it is noted that civil law emanated from Roman laws as stipulated in Corpus Juris of Justinian. Further, the civil Romani laws are classified as either those influenced by Germanic family laws or those influenced by French code laws. However, the influential of all the two was French code law which addressed mostly personal laws.9 On the other hand, emergence of common law is accredited to England and the countries that form Britain. This concept has spread to other countries which were Britain colony like USA with the exception of Louisiana and Canada with exception of Quebec.10 Britain’s common law is traceable from 1066. The precedent was set by the courts in Norman Conquest of 1066. These earlier precedents set the tone for deciding future cases even though the judges are free to alter these. Moreover, the precedent can be overturned if new legislations and statutes come into effect as formulated by legislators. The other Acts that shaped the development of common laws in Britain include Magna Carta Act of 1215, Petition of Right of 1629, Bill of Rights of 1689 and Act of Settlement in 1701.11 On the other hand, has stated earlier that civil law development is attributed to Romanic laws, but redefined by French codes which stressed on personal laws, the following is the brief development of its framework. 12 The growth of civil laws is greatly connected to political developments in France. In 1663, New France became a royal province and Louis XIV declared that they would embrace customs of Paris. In addition, the royal province had some ordinances. Owing to societal dynamics, the codes were changed and updated to keep in touch with realities. These changes were done in the year 1667, 1678 and 1685.13 The other major factor that emerges out of this discourse is the Code Napoleon that came into being after French revolution of 1789. This code addressed mostly issues of private laws. The parameters addressed under this code included the legal attribute of an individual, possession of properties, property boundaries, relationship between people such adoption and marriage and legal institutions directing the above institutions. The starting point of parting ways is that civil laws were not based on precedents and aimed at making the process easy to understand through plain language.14 In some countries, the adoption of common law tradition is integrated with religious laws, habits and traditions. Example of these countries is like India, Jamaica and Malaysia.15 From these historical perspectives, it is then easier to advance definition of the two traditional; approaches. The prominent factor that emerges is that common law does not embrace comprehensive compilation of rules & statutes and thus most work are shouldered on judicial decisions. This means that they are un-codified. As a result of these experiences and procedures, it then means that judges make decisions based on earlier precedents done at some stages. These prior cases are documented and historically maintained over a period of time as point of reference. These documented rulings are referred to us as yearbooks or reports. The emerging issue then is that under this protocol, judges have huge role in delivering justice based on the facts presented to him by the prosecutor.16 The civil law codifies all legal rules and statues by comprehensively compiling them. These codes determines or dictates matters and conflicts that are capable of being brought before a court of law as opposed to common law that the jury decides which case warrants appearance before a court of law. Moreover, these codes do specify the applicable procedures and the appropriate punishment to be met by those found guilty.17 Apart from the above, these codes undergo continual updating so as to be at par with the dynamic nature of the society. The well laid out codes goes a mile further to differentiate various sub-groupings of law. For instance, substantive law directs which issues are liable to criminal or civil prosecution. In addition, procedural law offer guidance on which situations that amounts to criminal act while penal law informs the judge on what is the appropriate punishment. Under this approach the judge investigates, and deliberates on the case based on the existing codes. In essence, it means the judge’s decisions are less critical while on the other hand legal experts who draft the code are very critical in the process of delivering justice.18 Analysis of Comparative Differences between Common and Civil Laws In attempting to understand difference between common law and civil law, different parameters can be used. This discourse will attempt at finding various striking features that creates the picture of non semblance between the two approaches/ frameworks as a means of delivering justice. The truth that emerges is that the two systems have had a significant impact on justice delivery system in most part of the world and that the existing situations if not of the extreme envisaged definitions, they are modifications or integrated frameworks. In attempting at building a discourse that contrasts the two legal themes, there are various factors that this paper will consider.19 The factors to be considered will include continuity of legal system, major source of law, reliance on precedent, judicial role in law making, role of legal scholarship, judicial review of statutes & executive actions, major decision stage, trial format, use of argument & debate, style of legal reasoning, emphasis on trial, evidentiary rules, roles of lawyers during trial, functions of lawyers, judge’s role during trial, selection of judges, status of judges, citizen trial participation, appellate review focus and unity of court structure. Procedural Differences One of the distinguishing factors under these two systems is in approach to delivering justice. The procedural difference exists in terms of major decision stage, trial format, use of argument and debate, style of legal reasoning, trial emphasis and evidentiary rule. For common law, the major decision making stage is at the trial. It is at the discretion of the judge or a bench of judges to decide to acquit or penalise an individual based on the evidence/ argument presented by the defence and the appellant/ prosecution. In most situations, cases involving state against an individual, it is the onus of the public prosecutor to prove to the judge that the crime is worth punishing by presenting evidence. On the other hand, to ensure the defendant is acquitted, his/ her attorney will strive to dispute the facts presented in the court by utilising mechanisms like alibi.20 On the other hand, in most civil law systems, the major decision is made at the investigation stage. This means that most of the works are bestowed upon the investigators who have to build credible evidence that one can be charged with in a court of law. this later statement then contradicts the view in common law where after all evidence have been presented and cross examination done, it is upon the judge to do the ruling depending on the weight of the matter and earlier precedents.21 The above statement then gives birth to the observation that in common law system, the trial format that is adopted is accusatorial and confrontational. This is evidence in most countries as the case is not based on factual presentations, but on technicalities. In common law, the prosecuting team tries hard to convince the judge that the person is liable for the crime and thus should be punished.22 This is why at time under common law most case is thrown out when judges feels that they do not meet threshold for prosecution. The essence here is to make the opponents argument flat and discredit it.23 On the other hand, it is observable that in civil law the emphasis is placed on investigators and not barristers. In this view, the process is inquisitorial; apart from public and criminal proceedings. Under civil law it is the function of the judge to cross examine witness. This is the exact opposite as this work is done by the attorneys of each party. The barrister’s role is to advice rather than debate or opposes the proceedings. Closely connected to the above then is the way the attorneys conduct themselves during the proceedings so as to ensure the defendant is acquitted or appellant wins the case. In common law the role of a lawyer is primary and critical and thus in most cases the proceedings cannot move on without the accused being represented. On the other hand, in civil law, their role is secondary as they are tied to advisory role since the case is based on factuality rather than technicalities or procedural correctness.24 In a general overview, it can be stated through assumption that the outcome of proceeding in common law system is based on the presentation and behaviour of the attorney. As highlighted in the later discourse, the next critical factor that emerges is the use of debate and the mode of thinking applied while conducting cases in the two scenarios. One factor that is outstanding and can be confidently stated is that under common law, the prime role of the defendant’s attorney is to discredit the argument being advance by the prosecution or the appellant. This then means that the use of argument and debate is much extensive.25 Thus, it is a fundamental component of delivering judgement. Here, the two sides present their positions by tabling evidences and cross examining witnesses of the opposing side. On the other hand in civil law, the debate is restricted as the decisions made will rely on investigation report. This means that the ruling will be shaped by the provisional report given by criminal investigators who considered all evidences as opposed to common law where evidentiary rule is restricted and only a portion of it applies. This implies that in considering evidence, common law is selective while civil law is holistic.26 This is why in countries like America, Britain and Australia defendants are able to go scot free with slightest procedural technicality. The other differing point under the two systems of law is the way of reasoning by the applicant. In most common law systems the logical reasoning adopted is normally deductive in nature. In this situation, prosecutors develop a basis for their argument.27 For instance, if the prosecutors were investigating a murder, they can arraign one before court of a law as first suspect on the basis that a blood stained cloth was found in the accused compound or his compound was stained with blood. This is assumption and it might come out at the end last that it is true or false. The essence here is that the premise in which the prosecution is advancing their course remain unproven and has do be handled at the face value.28 This then means the accused fate lies with the judges as this approach is prosecution centred and the accused has to be on defence to answer charges or refute them by faulting it or by bringing evidence. This therefore means it is an approach of moving from unknown to known and therefore able to give absolute truth. In the civil law the opposite is true where the mode of reasoning adopted is inductive in nature. In this approach, data is first provided by the investigators. A case cannot be prosecuted without enough evidence. It is from this data that the judge draws the final conclusion.29 The strength of this approach is that it keeps into contact the realities and not at a time witch hunts. The only challenge with this kind of reasoning is that while it allows investigators to look at all options, the conclusion arrived at is general. Source of Law Legal circle it has been accepted that there are two main sources for legislations. The first is custom and practices. The second source is the legislative statutes by various legislative organs like lower house, upper house or congress. In most countries that have adopted common law system, earlier precedents greatly influences the laws enacted. This then means most laws are enacted based on historical trends.30 On the other hand, in civil law, most of their legislations are determined with current trends. This means they have adopted an active view rather than what ought to be/ normative. The argument that can be built out of this is that common law is evolutionary as it is borrowed from past practices while that of civil law being viewed as arbitrary since in most case they tend to be substantive.31 The next connection out of this is that the emergence of the fact that in common law, the judiciary is active in making the laws since it is their judgement that will prompt enactment of legislations to fill voids that they have highlighted during their judgments. On the other hand, in civil law, judiciary role in formulation of legislations is limited since they only work with what has presented to them. Role of Legal Scholars vs. Judges/ Judiciary The other striking feature that is noticeable and shows the difference between the two systems is the role of legal scholars and judiciary. In civil law, the role played by legal scholars outside the judiciary structure is strong and defines what codes would be developed. The backing for this thought is on the fact that in civil law, it is the work of legal scholars to draft these codes based on their experiences and various theoretical and practical experiences.32 The work of the judge under the civil law system is only to apply the codes as already written down. This translates to the fact that the bench has to operate within existing written framework. However, the contrary holds true for common law system. In this system, the role of judiciary is extensive and they have that will of going outside the existing frameworks so long as their judgements are within the supreme law which is constitution. Thus, the comparison that can be built out of this is that the judiciary role in law making under common law is active while in civil law it is passive. Moreover, in terms of legal experts in common law is peripheral while in civil law they form the nerve centre. The reasoning behind this is grounded on the fact of interpretation and who calls the shorts during the proceedings.33 Judicial Review of Statutes and Executive Action A common overriding observation in common law system is the ability of constitutional courts to review statutes and executive actions if they contravene or contradict supreme law which is the constitution. Under this any aggrieved individual or party that feels the executive has overstepped its mandate in adhering to the constitution can seek legal redress in court. The same applies to other constitutional offices and other branches of the executive. Moreover, individuals or parties can go and block actualisation of any law that they feel infringes on their rights. After careful consideration a constitutional court can the grant a leave or give direction further.34 This is why in the countries with common law system one of the courts role is being custodian of the constitution and interpreters of the same and other legal statutes. This is why it is common to hear a court in US declaring the act by federal government or state inappropriate. This is also common trend in Australia even in situations where there are misunderstanding between state government and federal government. Hence, the conclusion that one can draw from this observation is that their rulings are binding and can only be revoked by a higher court. On the other hand in countries with civil law system, the main role of the courts is of actualisation and interpretation of laws as handed to them by legislature. This means they have no role in the review of status and executive actions. This means that it is only legislative enactments that are considered binding. Selection and Status of Judges The two systems posit a striking feature in terms of how judges are selected and their status in the system. In most countries that lean towards common law, the appointment of judges can be seen to be a political process even though once appointed their independence is guaranteed. The appointment adopted by these countries is where qualified and experienced plasticising lawyers are appointed to the bench.35 In some countries like England, their appointment is subject to the approval by the head of state/ government. Moreover, in some countries, the higher ranking officers in the system like Court of appeals and Supreme Court are subjected to parliament approval through a select committee. This then indicates a status of political VIPs as they are posted based on political lobbying and correctness. On the exact opposite is the civil law system. Under this system, the process of selection is more less the same as other civil servants. A person’s ascendance to the position is based on merit and judicial specialisation. This fact is supported by their belief in legal experts as they play central role in development of the codes. Therefore, the status of the judges under civil law can be interpreted as mid-level civil servants.36 Review / Proceeding Focus To bring the picture of the two systems engages the interested parties so as to process and deliver justice it is important to look at how they conduct their reviews. In a summarised and broken down analysis, the system of common law normally adopt what is called procedural review. The first step under this approach is where each party or the barrister representing the litigant and the defendant attempt as much as possible to gather information about the charges levelled against the defendant or the fault lines in the litigant’s litigation. The essence is for the defending side to discredit while the appellant is to support so as to convince the judge to deliver ruling based on their presentations. Both opposing side can request to access the information held by their exact opposite. The assumption under this view is that the judge knows the law and will apply appropriate measures.37 Contrary to the above, civil law adopt two procedures. The first is the procedural approach to proceedings and the second is the substantive approach. In the procedural approach under civil law, before the actual trial the two parties present their cases in writing under the guidance of the court. In this view the suing party will level their allegations before the court by presenting evidences/ exhibits. On the extreme, the sued party through his/ her lawyer will counteract the charges by entering into a plea.38 The greater difference then emerge out of the fact that in civil law it is the onus of each party to prove their case based on the documents at their disposal while in common law they also use those of the opponent. This then means in common law one is mostly incriminated based on how they use documents at their disposal and those of appellant while in civil law it based on each parties document alone. Unified vs. Fragmented Courts As a result of various works by numerous legal scholars, the concept of unified courts with central command had gone higher from 20th century. In earlier years, there were fragmented courts referred by names such as municipal courts, magistrate courts and domestic courts. The main argument is that in eases administration and ensures accountability. The fragmented courts brought about overlapping interests leading to complication of issues at hand even if the issue before them were the same. This approach has seen countries like Canada and USA adopt the concept. The origin of unified court is traceable in England where superior courts were established to supervisor the junior or subordinate courts. The mode operation under this structure is that lower courts handle minor cases while the upper ones handle major and constitutional cases. The concept of unified courts is more pronounced in countries with common law system where there is a central command and registry.39 In this approach, the court is headed by a chief justice or a president. Moreover, in most situation, the cases are first handled at the lower level courts moving up the hierarchy is the parties involved are not satisfied. In a simplified observation, in most countries with civil law systems, most of them have fragmented courts dealing with different aspects of disputes. These include domestic relations courts, juvenile courts and city courts.40 Implied Terms in Contract Law and Regulations In the England history, employer is capable of claiming the rights or benefits of an invention developed by the employee in the course of their employment. The prerequisite fulfilment is based on only proving that they had a positive contract with that person41. Nicholson (2011), figures out that the legislative framework in Australia also followed the same trajectory of English common law. He dissects this historical legal framework in relation to various acts that relates to employer-employee relation in terms on invention. Section 35/6 of the copyright Act of 1998 states that works developed by an employee under a contract of service or apprenticeship is owned by the employer unless given situations apply. In addition, the design Act of 2003 precisely state that employer shall have the right of being registered as the owner of a design created while in the course of employment or serving under contract unless it was agreed in prior to the contrary42. Thus, the observation that can be made out of these approaches is that in common law, the freedom of contract is extensive. This means that only few provisions are implied by the legislations in contractual agreements. On the opposite perspective, the conclusion that one can draw is that the freedom of contract is limited. This translates to the fact that there are a good number of implied terms stipulated into the law. Moreover, in common law, contractual agreements are treated in the paradigm of private laws while in civil law; they are treated as relating to public service. Therefore, in civil law, contractual agreements are subjected to public administrative law. Written Constitution One of the major themes that emerges and outlines the differences between the countries that have adopted common law and civil law is the presence or absence of written constitution. Britain being the home of common law up to now has no any written constitution. As had been seen earlier most of their judgments are based on precedents and thus, it is the onus of the judge to go and revisit legal archives and reports so as to inform his/ her judgement. This clearly indicates that in common law system there is no need for written constitution. On the other hand this is a contrary to the countries that have adopted civil law system. Since their system highly codified and written down, they all have written constitution to back. The essence of written constitution is backed by the fact that the source of civil law are from legislative statutes which are written down. These laws stipulate precisely what is to be done and they include personal laws, taxation, constitutional law and corporate law. On the other hand for common law the source are evolutionary and are from custom and practices. However, this case only true in cooperative view in extreme situations because there various countries that operate in common law framework, but have written constitution.43 Example of this includes USA, Canada and Kenya. Conclusion Out of this discourse, there emerges approximately 20 points that can be used to highlight the difference between common law and civil law. However, one observation that emerges out is that the study did not look at the effectiveness of the two in delivering justice. The essence of the paper was to pinpoint the differences alone. Under each of the parameters outline the following emerged and they acted as lessons learnt. Out the highlights in the body, in terms of continuity of legal system it is evident that common law system is evolutionary while civil law is arbitrary. In the perspective of major source of law, custom and practices shapes common law systems while legislative statutes inform civil law systems. The other point is in terms of reliance on precedent where common law has strong reliance while civil law has a weak reliance. The next additional point noted is that in common law system, judiciary has an active role in law making while in civil law they have a passive role. Closely related to the above is the observation that role of legal scholarship in common law is peripheral or secondary while in civil law is dominant and influential. The next level of findings that emerged out of the literature is that major in common law, major decisions are made during trial process while in civil law major decisions are made at investigation and examination stage. Associated to this later stage is use of argument where in common law it is extensive while in civil law it is modest. Further, the literature showed that the trial format adopted by common law is accusatorial/ confrontational with that of civil law being inquisitorial and collaborative. This argument also brought a development that common law applies inductive means of legal reasoning while that of civil law is deductive. Apart from the above, other factual observations that can be deduced are that common law adopts formal restrictive evidentiary rule while on the other angle, in civil law all evidence are considered. Moreover, in common law, the role of lawyers during trial is primary, but in civil law, their role is secondary. This consequently highlights the argument that in common laws the function of lawyer is to debate and oppose, but in civil law their function is to advise and inform. Lastly, the other difference emerged from the judge’s role during trial where in common law they act as umpires and in civil law they assume the role of an examiner. In addition, selection of judges in common law is political driven and in civil law it merit based and those with extensive knowhow judicial processes are picked. Connected this later two is their status. In common low, they are like political VIPs and in civil system they are like mid-level civil servants. In terms of citizen trial participation, in common law they are like juries while in civil they are like members of judicial panel. Other emerging difference noted is in appellate review focus where in common law it is procedural, but in civil law it is both procedural and substantive. Finally, in terms of unity of court structures, it emerges that common law adopts a unified court structure while civil system adopts diffused court structures or what is seen as multiple specialised courts spread all over. Thus, in extreme view, the two systems are a total contrast apart from serving justice to citizens of a country. Bibliography Andrew Nicholson, without employment contracts-employers risk loosing IP 2011, Retrieved online on 15th June 2012 from: http://www.findlaw.com.au/articles/2269/without-employment-contracts---employers- risk-losi.aspx. Glendon, Mary Ann, Michael Wallace Gordon and Paolo G. Carozza. (1999). Comparative Legal Traditions in a Nutshell. Hazard, Geoffrey C. Jr. and Dondi, Angelo, "Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits" (2006). Faculty Scholarship Series. Paper 2329. John H. Merryman, The Civil Law Tradition (2d ed. 1985) Joseph Dainow, The Civil Law and the Common Law: Some Points of Comparison, 15 Am. J. Comp. Law 419 (1966–1967). Lengeling Dominik, ‘Common law and civil law – differences, reciprocal influences and points of intersection.’ (2008). Siegen . Menno, Van Der Veen (2009). Contracting for better places: A relational analysis of development agreements in urban development projects. Delft: IOS Press. Merryman, J. H. The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America (2nd ed Stanford University Press, 1985). Messitte , Peter J. Common Law v. Civil Law Systems. Retrieved online on 15th June 2012 from: http://web.ntpu.edu.tw/~markliu/common_v_civil.pdf> Papadopoulos, Ioannis, "Introduction to comparative legal cultures: the civil law and the common law on evidence and judgment (oral presentation of the book by Antoine Garapon & Ioannis Papadopoulos, Juger en Amerique et en France : Culture judiciaire française et common law" (2004). Cornell Law Faculty Working Papers. Paper 15. Scott, Jacob, "Codified Canons and the Common Law of Interpretation" (2008). Student Prize Papers. Paper 32. http://digitalcommons.law.yale.edu/ylsspps_papers/32 The World Bank. (2011). Key features of common law or civil law system. 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