Civil Law, Common Law and Legal Disciplines - Assignment Example

Final Exam

Question one

Part 1

Historically, civil law traces origin back to 600 C.E. from the Romans when Emperor Justinian instituted legal codes for sanity within the roman empire; however, some legal experts dates back its origin to 450 B.C. (the year of twelve tablets) (Merryman & Pérez-Perdomo, 2007). It remains the oldest and widely used rudimentary system with foundation on corpus Juris civile codified in primarily property, contracts, inheritance, and family. It took longer to develop but gained prominence from the longer journey especially after the Dark ages to the enlighten period (Glenn, 2014). On the other hand, common law traces its origin to the English monarchy. It is a historical accident that arose from the Norman conquest of England in 1066, which led to the establishment of courts for administering justice. It gained ground through equitable principles and precedential opinions even as appropriate remedies prevailed. Contrary to civil law which is codified, common law is not codified and relies on compilation of scattered statutes for posterity.

Part 2

The primary features of each system is represented in the table below

Feature

Common law

Civil law

Role of judges

Judges referee between antagonising lawyers, deliver rulings and decide on matters surrounding contested laws; they set precedent, investigate facts but rarely make deep enquiries instead opting for what is presented in courts

Judges enquire about facts and makes rulings: they are the chief investigators; they seek facts of the case and apply only provisions of the required case. In many cases, they apply the formal charge

Constitution

This is not a mandatory requirement while hearing or delivering any case

Is always used as a point of referal

Legal system

Primarily uses case laws mainly developed by judges in similar tribunals

Codified into legal systems mainly from Europe with prevalent core principles operating under referral systems of the primary source of law

Sources of law

Legislation, subsidiary legislation,, equity, judiciary precedent, conventions, customs, international law and constitutions for countries not in UK

Legislation, the constitution, international law, customs, statutes and judicial precedents as well as recognised conventions

Evidence taking

An important part of the litigation process; necessary for effective administration of justice; litigants have the privilege to excessive the right within US but limited outside the jurisdiction

Evidence taking or presentation exist within the courts inquisitorial functions. The courts hold the most important role in the process

Countries

United States, Canada, England, India

China, Germany, Spain, many African nations, most South American nations and part of Europe

Part 3

Since conception, both common and civil laws have transformed and extended to different jurisdictions. In the contemporary world, the defining element of any segment has a foundation on the actual source. As a matter of fact, judges have a proactive role in designing new rules based on past experiences. Common law has greatly shaped statutes and other communal doctrines (Glenn, 2014). The structures have established new systems upon which cases can be heard from the lowest levels to even higher jurisdiction where the judges have the discretion of deciding the case. Additionally, case laws and civil laws have segregated operation into significant enclaves upon which operation of one area cannot overlap to another (Merryman & Pérez-Perdomo, 2007). A crime associated to murder cannot be heard through statutes but rather case law; however, precedents also help in reasoning and decision. The gaps in common law; nonetheless, does not appear in civil law systems where codes and statutes seal all the eventualities. Judges have a limited role when interpreting laws and past guides do not hold any role in the cases. They are merely loose guides; however, the chief investigators present arguments with equivalent arguments making the ultimate conclusion.

Part 4

In as much as America inherited most of traditions from the British common law such as jury trials. The expansive developments established new doctrines and codification adventures changing the whole system. America operates under a federal and county government jurisdiction with each county having smaller courts superimposed upper courts to support in case of disagreements. Europe, on the other hand, apply monarchical interventions with similar court systems although one unitary structure (Glenn, 2014). Prominent legal scholars have identified France and America with divergent national authorities that greatly weigh evidence. The civil law system in the American jurisdiction operates on consistency, certainty and fairness.

Part 5

Every country apply different policies and traditions. The legal practitioners ranging from judges and lawyers have made serious legal changes with significant implications (Youngs, 2014). The specific tasks have changed the way judges deliver rulings particularly depending on nations and practice of important sections of the government. The starting point is the treaties and conventions, which partakes to converted domestic laws. In many cases legal reviews have applies a dualist approach, which may appear a separate way of operation. The reviews have also converted non-binding legislations with multiple sets mainly prevalent through supreme courts (Merryman & Pérez-Perdomo, 2007). Furthermore, the reviews have introduced non-uniformity where experts have failed to find direct resolutions to common problems. Nevertheless, both have streamlined criminal investigation and presentation to the point that judges have a little role to play.

Question Three

Part 1

According to Robert Kagan, Adversarial Legalism is a comparative analysis of the fragmented political environment that constitute the new and old legal disciplines. Additionally, it is an idiosyncratic check of the modern democracies as a function of social and economic related exposure. It tries to explain the synergy between the old constitutional system extending back to the eighteenth century and the post legislation era bestowed on total justice (Glenn, 2014). It also dissects through the stringent government structures primarily revolving around injustice, harm, and environmental damage. Kagan’s larger point; however, encourage activist government operations, which has seen a significant increase in the right to free and elaborate procedures. In the American setup, adversarial legalism constitutes the significant achievements in special education programs and several rights associated to proper education. The milestone achievements may be associated to the doctrine from various perspectives ranging from policy formulation to imposed statutes protecting people from any form of exploitation (Youngs, 2014).

The sensational feeling also appears through the individualised education programs passed through the federal courts and supported by the congress. The disability education Act, for instance, demonstrates the dual nature of adversarial legalism. According to Kegan, it takes people through the problem of excess litigation when dealing with medical, psychological or educational issues. Concurrently, the Master Settlement Agreement of 1998 lobbied and imposed a $250 billion tax on companies dealing with tobacco as a pathway to de factor regulatory regimes. The step introduced several other legislations that changed common practices in the industry. Additionally, it established ambitious and direct litigation process applicable throughout the country. Most importantly, adversarial legalism remains conspicuous through civil right protection and revolution of 1960s where the demand for simple justice dismantled the Jim Crow system.

Part 2

Adversarial legalism mainly exists in the purview of the American political system due to the regulatory policies and law spheres. It systemically points out a society of mistrusts and concentrated government power meant to assert authority over specific people as evidenced in Brown v Board of Education (Marshall, 2016). Ordinarily, the United States did not develop hierarchical economic instruments to monitor corporate ownership and govern against antitrust concerns. On the other hand, Kagan believes there is little policy needs in adversarial systems despite accepting the importance of regulating corporate misbehaviour of interlocked corporations. As demonstrated by the National Association of the Advancement of Colored People (NAACP), the sword of adversarial legalism helps reduce the any threats exhibited in the world. As a matter of fact, it shapes litigation policies and promote stringent enforcement in the deep roots. The Civil Rights Act of 1964 followed by the Voting Rights Act of 1965 all represent significant steps of adversarial legalism (Marshall, 2016). The laws marked a foundation for enlightenment and administration of the New Deal, which from various perspectives was the new hope for America. Apart from creating hope, the sensational changes introduces a rulemaking arena where several institutions dealing with people’s welfare were made.

Part 3

Globally, the law is the bridge between economic and social life. Kagan’s alternative suggested models hinged on experiences of Germany, France, Japan, and Great Britain shows the basic tenets of distinctive systems (Marshall, 2016). The German approach to adversarial legalism conveys a German industrial relations structure to liberate the country’s economy. As a matter of fact, the judicalised appearance of the German labor law points to economic liberation as the principle consideration of Germany as an entity. Germans have the privilege of filing tort suits but it is not costly as evidenced in the American system. Interestingly, this creates little boundaries between the American style, which also fights for significant laws on governance as well as economic prosperity. The fact that Europe has adopted transnational governments free of autonomous economic systems also represents a nearly similar model to America. Japan and France are equally using the same technique to address deep inefficient gaps in laws (Marshall, 2016).

Part 4

Amidst adversarial legalism, international competition is an inevitable phenomenon necessitating aggressive adversarial styles. The increasing transformation is closely tied and makes taming of the same concept a matter of social control and economic capping. However, considering the many economic utilities and many legalistic challenges taming adversarial legalism reduces the whole process to monopoly. The question whether adversarial legalism is tamed according to Kagan can be best answered through The Equal Employment Opportunity Commission (EEOC) and the department of justice were some of the products of the transformation created by adversarial legalism. Similarly, the new Office of the Civil rights (OCR) merged education and welfare needs despite significant arguments fermented on the administrative powers (Marshall, 2016). Most importantly, the binding rules of cease and desist limited filing any suits in private capacity, a matter which to a greater extent hampered the success of litigation laws. Adversarial legalism stream obstacles elevated in the process of attaining justice. In this respect, it lifts the barriers instituted to limits the success of key rights movements while also taking into consideration the fact that some people may not be willing to administer justice in ordinary capacity.

Question five

Part 1

The role of judges in both the civilian and common law jurisdictions vary with various similarities presented. In a common law setup, the judges make rulings and set precedence based on the level of court. The hierarchical structure and peculiar characteristics grant judges the active role of establishing rules of operation although within the existing systems. English laws takes pride in the inevitable flexibility, which discern important elements while at the same time quickly adapting to changing circumstances. In as much as this may not go to the extent of cross examination, they may be forced to seek clarification through explanation or direct questions. Most importantly, they have the power to force witnesses to come and testify as well as provide crucial information that may be lacking at the time. Equally, the have right to avoid extensive enquiries and instead rely on arguments provided by the lawyers or witnesses presented for the case.

However, in a civilian court the chief investigator takes charge of the entire process ensuring the right people and question is asked on behalf of the judge. The chief investigator usually is non-binding to third parties and is encouraged not to take partial roles. After presentation and cross examination by the relevant stakeholders, the judges have a role of examining facts and cross checking against provided codes after which a ruling is made (Glenn, 2014). Despite the segregated process, the judge is responsible for bringing the formal charge with plea and direction hearing increasing reliance. The roles of a judge are more widespread in civilian laws as opposed to the common law where the judge covers the overall eventualities. Nonetheless, in both jurisdictions judges have the capacity to establish codes and systems that examine the same issues. Judges in higher courts may uphold or change rulings depending on evidence.

Part 2

The size and authority given to each judge in each system varies depending on the level of court and legislative principles. The Anglo-Saxon tradition explicitly gives judges the discretion to change and make interpretations based on what they deem right hence being fair to both parties in a dispute. Additionally, judges have a role of querying about facts of a case whenever the jury is absent. In both systems a judge is expected to be fair, impartial and unbiased while maintaining utmost integrity as well as commitment to delivering justice to the aggrieved. In both systems, the law grants the judge to grant bail at discretion or deny the same based on the existing facts. Whenever a defendant is not able to hire a layer, the judge is permitted within the law to appoint one (Marshall, 2016). He, however, is compelled to show understanding and compassion for justice to be realised.

On the same note, judges in both the civilian and common law rely on the law to make rulings and sentencing. The judge remains the trier of fact in both scenarios whether the jury exists or the judge takes charge of the whole process. In the case of diminished responsibilities; however, judges takes a different approach although within the confines of the law (Youngs, 2014). For instance, juveniles do not need the jury and do not need harsh sentencing hence community systems in place to offer the best remedy. It is important to note that judges do not punish people but rather rely on the law to interpret laws relating to the existing offense.

Part 3

The roles of judges significantly changed when the UK common law systems merged with the European Union civil system giving birth to the a law based on common and civil law principles. The legislation has not significant codification but works through legally binding mixtures, which are internally consistent. The changes enhanced and overtook law making standards with distinct theories facilitating the success of any case (Glenn, 2014). The persuasive effect of UK common law system makes it stand out with several figure heads greatly vested on the interest of the public. Europe has no written constitution but the supreme law making institutions have ensured constitutional conventions provide the right direction. The House of Commons and the House of Lords are the representative authorities that segregate the pertinent roles previously exhibited as boundary between civil and common laws (Merryman & Pérez-Perdomo, 2007).

The synergy gave a unitary role of state agents and defined the meaning of residual freedom as opposed to express reservations previously witnessed. Unless granted by an Act of Parliament, the statutory obligation of the law delineates basic grounds upon which issues such as illegality may be addressed. For instance, when a legally mandated organization wrongly interprets sections of the law, other established organs have the reasonable authority to account for the irrelevant matters while considering appropriate remedies. Above all, the synergy gave rise to procedural opportunities and transformation as well as challenges in equal measure.