Three Main Global Legal Systems - Common Law, Standard Proof, and Shariah Law - Essay Example

RUNNING HEAD: Common law Common Law, Standard Proof and Shariah Law Name: Instructor: Course Unit: Date: Introduction The proper administration of justice depends largely on the burden of proof or evidence. The witness, evidence or any proof presented in the court is the basis for judgment in any criminal and civil proceedings. However, the burden of proof in criminal and civil proceedings varies depending on the quantum of evidence needed, the weight of crime committed and its corresponding punishment. In most countries where a concrete legal system is established the burden of proof needed for the proceedings and administration of criminal justice is “proof beyond reasonable doubt” to convict a person while in civil procedure the burden of proof needed is only preponderance of evidence to grant the prayer of the complainant/plaintiff and its corresponding damages. This system of finding facts is known as Civil Law System. Nevertheless, not each and every nation holds on to the system of civil law. The best example of a country that does not adhere to the civility rule is Saudi Arabia. The legal system of Saudi Arabia is founded on Shariah Law (Islamic Law) which includes, special sets of criminal laws derived from the Muslim’s Holy Koran. This legal system of weighing evidences with regard to its quantum is technically refereed to as common law system, where evidences are weighed according to their nature and relevance to a case, while basing on customary laws is deemed necessary. The differences on the requirement to the weighing of evidence in common law countries depends largely on the common practices of one’s culture, unwritten laws and the country’s religious affiliations and practices(ILEX Tutorial College 2009, 5-8). In the effort to uphold justice in every country, the respective government provides a legal system that could be either a common or non common law system that would fit the country’s criterion based on necessity, culture, religious affiliations or traditions. This implies that interpretation of laws, administration of justice and dispensation of punishment varies among different countries (Engle 2010). Discussion In the administration of justice the evidence presented in the proceedings plays an important role in the turnabout of any given case. However the appreciation of evidence depends on a certain legal system that a county is currently using. The two most common system used in approaching any legal aspects are the Civil Law System (legal system) and the other is the Common Law System (customary system). Civil law system is one of the most prevalent oldest existing legal systems in the world where written laws are codified into one compendium for comprehensive basis of substantive administration of justice for every judge and every citizen to follow. The compendium is divided into codes in which subject matters are arranged systematically by topics and chapters for easy referencing. These set of rules are legal ideas are based on natural laws, legislative enactments and generally accepted principles are collected and made as a primary source of law. One of the unique features of this legal system is that it distinguishes substantive laws from procedural laws. This legal system is commonly known as the Roman law which is derived from a Latin words jus civile which correspondingly means citizen’s law. The basic principle of this legal system is to provide all citizens and judges written collection of laws to follow (The Open University 2010). The civil law system provides specific rules and procedures in admitting evidences on criminal and civil proceedings. The admissibility of evidence in civil procedure only requires preponderance of evidence and or clear and convincing evidence which are lower forms of burden of proof. In order for the party’s prayer to be granted the evidence to be presented during the proceeding must be more likely than the fact that the claimant seeks to prove is true. Preponderance of evidence simply means that the evidence presented favours more the other party even by smallest degree of doubt. The clear and convincing proof simply means that the evidence presented establishes higher probability of truth. The weight of the evidence presented is one with clear and convincing proof that the judge at hand will reason with wise judgment based on the probable balance of 50% truth (Farlex 2010). The requirement does not require of strict or rigid process for civil cases only grants damages and inherent rights. In criminal procedure the evidence presented must constitute proof beyond reasonable doubt to convict the defendant/accused. The requirement must be met with rigidity and clarity before any conviction will be made. The standard must be that no other logical explanation must be derived except that the accused committed the crime and the presumption of innocent until proven guilty was override. In every criminal proceeding if the judge at hand has no doubt as to the accused guilt based on the witness’s statement and evidence presented then the accused must be pronounced guilty beyond reasonable doubt. The requirement as to evidence to be presented is one which points to a moral certainty and beyond reasonable alternative. Proof beyond reasonable doubt which is the standard rule used in any criminal proceedings is the highest standard of burden of proof compared to the clear and convincing proof and preponderance of evidence which is used as a basis in civil procedures. The rationale behind this strict rule is that criminal proceedings might result into the deprivation of the defendant/accused rights and liberty and even to death. The punishment for a criminal proceeding is much severe compared to the remedy granted by civil proceedings (Farlex 2010). Conviction in criminal proceedings produces severe punishment compared to the gravity of punishment produced by civil proceedings. In countries which adopted the civil law system the distinction drawn between the burdens of proof in criminal and civil litigations are generally accepted by the citizens and law scholars. The need for a stricter requirement for evidence to be presented in a criminal procedure to convict the defendant/accused is a must for the gravity of punishment is harsh and severe. To protect the right of the indicted individual the stricter requirement must be imposed. Citizens who adhere to the principle of equality and justice opted for this standard for even criminals and or accused criminals also have right that needs to be protected (ibid). The distinction between rule of Evidence in criminal and civil proceedings does not in any way hamper the growth and development of the study of the Law of proof. The distinction however provides more room for advances in philosophies and principles that will certainly benefit the community at large. Standard of proof is defined as an established evidence of facts and the existence of truth or non-existence of truth to satisfy the court of competent jurisdiction in accordance with the acceptable standards set in the best evidence rule. It is the level of proof that is needed in a certain case through assessment of evidence. The standard of proof required in both civil and criminal cases plays significant role in the administration of justice. It is the very foundation of every court’s decision or verdict to a certain case. However, the standard of proof required in civil case is noticeably different than of the criminal case (Business Dictionary 2010).  The standard of proof may be classified as a mere preponderance of evidence which is applicable in civil cases and it is considered as the lowest level of proof that is more likely indicates dependency and neglect rather than probability. This preponderance of evidence is the presentation of facts that is more convincing and the manifestation of truth but not necessarily based on the amount of evidence presented. Therefore, one witness that has the knowledge of facts in a certain cases may provide preponderance of evidence as compare to a dozen of witnesses with weak testimony, or may be presented in court as witness that could outweigh opinions or speculations concerning the issue. This is sort of one way persuasion to the judge or the jury to that effect convincing the authority that the contention or contentions are true and correct without having connected to beyond reasonable doubt. If the evidences presented by the plaintiff in court are superior as compare to the evidences counter-presented by the defendant, then the appreciation therein is simply preponderance of evidence and the judge or jury can decide on the case and determine the party at fault. Take note that in civil cases, it is not criminal in nature because the cause of action is simply based on property rights, business, personal domestic problems which are not criminal in nature and divorce. Thus the burden of proof relies exclusively on the plaintiff and not on the defendant or the state (Tectlaw 2010).  In criminal cases the standard of proof is required on its highest level because the state shall prove that the accused in a particular case is guilty beyond reasonable doubt. Proof beyond a reasonable doubt therefore, is a proof which has convincing character that the court is willing to rely upon its findings and conclusions of evidences presented without hesitation and with reasonable certainty. In criminal cases, the prosecution must meet the standard of evidence that no other logical explanation can be taken from the facts and that, it points only to the defendant’s participation in the commission of a crime and proving therein the manifestation of overcoming the doctrine of presumption of innocence. The term implies that evidence establishes a certain point leading to a moral certainly and it is beyond any other dispute and available alternative. It is not simply a presentation of evidence or providing credible witnesses in court but the main factor therein is how you can prove and defend your contention with reasonable certainly. As it is the highest standard of proof, it must be present in all criminal hearings and its nature must not be simple preponderance of evidence or by clear and convincing evidence (Martindale-Hubbell. 2010).  On the other side of the coin the issue of standard proof is contentious amongst scholars because of the predestined biases, ensuing from credence in what the standard of proof for conviction is and the subject matter’s individual background have a considerable consequence on the line of attack he or she is proven to be guilty or not. Individuals and hence judges inclusive, hold opposing views on what comprises reasonable doubt, and this definitely impinges on their pronouncement on whether a defendant is guilty. The largest part of judges takes for granted that jurors' prospect guesstimates of standards of proof do not vary from their own (Simon 1969, 103-114). This conjecture by judges is without a doubt erroneous, due to the fact that, discrepancies in standard of proof do subsist and have considerable impacts on the jurors’ judgments. If jurors are offered with a clear designation of standard of proof previous to a trail proceeding, possibly they would be not as much of biased by their individual inner replicas of what reasonable doubt is. Obviously, jurors may still be influenced by their individual elucidation of whether substantiation meets up the standard proof prerequisite, but in any case the difference of opinion would possibly be over the belief, to a certain extent than the least point of confidence necessary for conviction. Conversely, the self-reported standards of proof ought to be taken as surrogates for the subject matters’ factual standard of proof. On every occasion that there is indistinctness, an individual’s interior imitation has an impact on his or her managerial. It is evident that race and gender have a significant effect on an individual’s verdict. Therefore for the previous reasons “The standard of proof reflects the value society places on individual liberty" (U.S. Supreme Court 1979, 424-425). Standard of proof ought to be associated with the verdict, but not interrelated with how possible the subject considers the defendant to be on the wrong side of the law. In some countries similar to the Kingdom of Saudi Arabia there is no adherence to the Common Law system and Civil Law system. From the country’s rich history and culture comes off Shariah Law which teaches of a legal system that influences the modern common law and civil law system. Shariah Law was unanimously founded by Prophet Muhammad during his preaching at Mecca and Medina, the two most popular city of Saudi Arabia where Islam religion originated. Shariah law, appropriately comprehended, is not in a minute a legal set of laws. To trusting Muslims, it is somewhat deeper and superior, inculcated with ethical and metaphysical rationale. At its core, Shariah law corresponds to the inspiration that all individuals are under discussion to justice under the law (Ènalcik, H. et al 1991, 1-44). Shariah Law is one of the three legal systems in the world and one of the oldest thriving. The sources of the legal system are the Holy Qu’ran, Sunna, Ijma and Qiyas. This legal system is unique for it combines the religion, tradition and culture of one’s country into a complex legal system generally accepted by the citizenry. Just like any other legal system Shariah Laws are divided into codes which cater for topics on Persons and Family Relations, Succession, Commercial Laws, Criminal Laws and other laws necessary to public governance and public relations. The distinction can be observed especially in Criminal Laws where process and procedure of administering justice is unique. The four-fold amalgamation that includes, the Koran, the path of the prophet as perceived in the compilations of reports, analogical reckoning and accord is what quantified to a foundation for a legal system (ibid). In Shariah Law a person is presumed innocent until proven guilty and treated equally with the complainant before the court of law. The burden of proof lies in the hands of the defendant and it is inherent upon the complainant to produce eyewitnesses ranging from two to four depending on the gravity of the crime committed. In cases where the complainant cannot produce eyewitnesses, the complainant can insist on the defendant’s oath of his innocence. Refusal of the defendant to take the oath constitutes perjury and guilt and will be judged accordingly. According to the Muslim beliefs perjurers will suffer eternal damnation. The taking of oath is the same as the swearing of Jews and Christians alike and has the same validity. The power to administer criminal proceedings lies in the hands of the judges (Qadi) and they are bestowed with the powers to question the parties involved in the controversy. During the proceeding normally there are no juries and lawyers to represent the parties. The judge is bestowed with full authority on the dispensing of justice. In cases of serious crimes and punishment a system of appeal can be availed. According to Shariah law the crime that carries specific penalties are murder, apostasy (rejection of Islam), adultery, fornication, homosexuality and theft. Offences such as debt, usury, alcohol and drug abuse and pornography carry lesser punishments (Amanat & Griffel 2007, 62-83). In the ancient law, blood money or payment for a certain injury or death is usually requested by the family of the victim as compensation. The amount varies depending on the gravity of the crime committed, the seriousness of the injury, circumstances of the death and the hardship that the family will encounter due to the loss of a family member. The penalty is doubled if the crime is committed during the month of Ramadan and if the victim is a Muslim. However the blood money for a Christian victim is only half of the calculated amount for the Muslim (Justlanded 2010, 52). Shariah law, appropriately comprehended, is not in a minute a legal set of laws. To trusting Muslims, it is somewhat deeper and superior, inculcated with ethical and metaphysical rationale. At its core, Shariah law corresponds to the inspiration that all individuals are area under discussion to justice under the law. Under the Shariah Law tangible evidences such as personal belongings and other items are given much credence mean while the statement of the eyewitnesses is given much preference. Law scholars find this system simple and easy to rebut. But in countries like Saudi Arabia where a person’s oath is given much importance, the system works well and the society is always at peace. Criminalities at the country under Shariah Law system have a lower rate due to the religious infusion of beliefs and traditions. A country under Shariah law is legitimate, in that the twofold good judgment by and large reveres the person legal rights of its subjects and is observed by them as doing so. In shariah law similarly to the common law, the proof reveals a prima facie case solitary when it is unchallenged and if accepted as true, it will be ample to provide evidence to the case not in favour of the accused. This would denote that previous to the defence could be called, the court has to make a maximum assessment of the verification adduced by the prosecution and that the prosecution witnesses would have to be subjected to a rigorous test of trustworthiness (Amanat & Griffel 2007, 62-83). The judgments of courts, taken simultaneously, encompass the common law. When there is no decree exclusively dealing with a legal argument, courts glance to aforementioned cases for direction. The concerns, interpretation, and holdings of previous cases channel courts in reconciling comparable arguments. A previous judgment or compilation of views on a fastidious legal subject is recognized as precedent, and courts by and large tag along precedent, if any, when judging cases. Contravention with precedent may be warranted when state of affairs or approaches have altered; however subsequent to precedent is the norm. This bestows the common law a definite predictability and consistency. The common law often is in charge of civil matters, for example agreement arguments and individual grievance cases or torts. Nearly all criminal laws are constitutional, so common law standards are on the odd occasion applied in criminal cases (ILEX Tutorial College 2009, 5-8). The judgments of courts, taken simultaneously, encompass the common law. When there is no decree exclusively dealing with a legal argument, courts glance to aforementioned cases for direction. The concerns, interpretation, and holdings of previous cases channel courts in reconciling comparable arguments. A previous judgment or compilation of views on a fastidious legal subject is recognized as precedent, and courts by and large tag along precedent, if any, when judging cases. Contravention with precedent may be warranted when state of affairs or approaches have altered; however subsequent to precedent is the norm. This bestows the common law a definite predictability and consistency. The common law often is in charge of civil matters, for example agreement arguments and individual grievance cases or torts. Nearly all criminal laws are constitutional, so common law standards are on the odd occasion applied in criminal cases. The vice versa is true with the shariah law which almost handles every type of offence (Roeber 2000, 883–912). The basic and the most important principle an individual must bear in mind is to respect each countries culture, tradition and set of laws despite of its differences. Shariah law standard of proof is aggravated fundamentally by the conviction that it is God’s will as they interpret it. No establishment anywhere in the human race facilitates board of judges or nongovernmental performers Similar to the United States constitutional balance of powers, the conventional Islamic balance is sustained by expressions and ideas and not just by aggressive coercion (ibid). The complexity of the Shariah law is that, it is a subject for the prosecution to adduce satisfactory verification, which is not intrinsically inconceivable, in order to demonstrate each and every vital fundamentals of the offence charged straightforwardly or to facilitate its subsistence to be convincingly anecdotal. Another complexity is that, in Matters regarding criminal in shariah law, predominantly those in relation to hudud offences, the plaintiff is obliged to demonstrate the case further than any shubhah or shades of doubt or yaqin. This is principally appropriate to its temperament of offence and the rigorous castigation approved where no leniency is permissible as it involves the right of the Almighty, Allah. In this perspective, the weight of proof lies on the party accusing and this weight can only be emancipated with the maximum standard of proof where shak or state of doubt based on probabilities bordering between ‘proved’ and ‘not proved’ and wham, this is, the state of doubt or fancy which leans closer to error, are totally discarded. This is based on the renowned hadith of the Prophet, which states to the effect, ‘‘Set aside hudud whenever doubt arises’’. In other words, the claimant must prove the case with the utmost certainty as certainty cannot be eliminated except by another certainty (Papachristou 1999, 42). Conclusion The 3 mainly legal systems globally, the Civil Law System, Common Law System and Shariah Law System influence every community and every life. The importance of knowing the different nature and approaches of this system will benefit the community at large. Even though the three legal systems have its distinct features from each other still it aims to uphold and deliver justice to everyone. The requirements, procedures, approaches may vary in the presentation of evidences still the objective to administer and dispense justice with sincerity and honesty must not be disregarded. The weighting of evidence and rigid implementation of law of evidence under the civil law system works well for countries who adopted this legal system. Those countries who adopted the shariah law system has its unique way of administering justice and those countries who developed their legal system through customs and people’s initiatives the common laws is generally acceptable. Shariah law seeks to be evenly to every individual, great or small, ruler or ruled. No individual is on top of it, and everybody at all times is bound by it. But the history of Shariah law also illustrates that the superlatives of the rule of law cannot be put into practice in nothingness. Because of the latter reason, a country needs in point of fact effective establishments, which must be reinforced by accepted practice and by the acknowledgment of performers within the system that they have more to achieve by remaining realistic to its read outs than by conflicting from them. References Amanat, A. & Griffel, F. 2007. Islamic Law and Legal Charges. Shari’ a Islamic Law in the Contemporary Context. Ed. 62-83. 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