Common Law versus Continental (Roman) Law

In this Page, I will attempt to describe and compare Criminal and Civil procedures in both Continental and Common law legal systems providing with definitions and examples. In addition, I will draw a comparison between the two systems itself and give information in what countries these systems are applied. The common law legal system perceives law as a tool only to limit state government, whereas according to the continental legal system, it restricts but also empowers state government. [1]

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Continental (Civil or Roman) Legal System

There are two highly dominant legal systems in the contemporary world such as continental law and criminal law. The civil law legal system is a collection of a few distinct elements or subtraditions, with distinct origins and developments in various periods of history. The continental legal system is directly traceable to the Roman law as compiled and codified under Justinian in the sixth century A.D. It includes the law of individuals, the family, inheritance, property, torts, unjust enrichment, and contracts and the resolutions by which interest falling within these groups are judicially defended. Continental law legal system is fundamental law to majority of civil lawyers. Basically, continental system produces common values or principles and makes a distinction between substantive rules and procedural rules. [2] It keeps legislation as the foremost source of law, the court system is typically inquisitorial, boundless by precedent, and consists of professional judicial officials. The rule of continental law is to build a bridge of available and written collection of the laws which concern all citizens and which judges must follow. Colonial expansion extended the continental law system and European civil law has been accepted in much of Latin America as well as in parts of Asia and Africa. The legal code is also the major source of law which is compendium of statutes. Law codes are mostly made by a legislature’s enactment of a new statute that represents all the old statutes linking to the subject as well as changes demanded by court verdicts. Nevertheless, codification is not the crucial characteristic of the system, as for instance, the continental systems of Scotland and South Africa are not codified as well as systems of Scandinavian countries. [3]

Common Legal System

The common-law legal system exists in England, the United States, and other countries colonized by England. It is different from continental legal system, which predominates in Europe and regions colonized by France and Spain. Anglo-American common law brings its roots to the medieval idea that the law inherited from the king’s courts characterized the common custom of the people. Early common law procedure was ruled by a difficult system of Pleading, under which only the wrongdoings specified in approved writs could be litigated. Complainants were mandatory in order to satisfy all the specifications of a writ before they were allowed a right to use to a common-law court. This system as substituted in both England and the United States during the 19th century. Common law courts base their decisions on previous judicial verdicts rather than on legislative enactments. While a statute monitors the dispute, judicial analysis of that statute decides how the law applies. [4] In common legal system, judges rely on their predecessors’ judgments of concrete disagreements, rather than on abstract codes of texts. Under the principle of Stare Decisis, common law judges must to look at former decided cases or precedents where the facts are considerably the same. As common-law decisions deals with daily cases as they start to occur, social changes, inventions, and discoveries make it vital for judges often to pay attention to outside reported decisions for guidance in a case of previous undetermined legal issue. This system makes it possible for judges to observe other jurisdictions or consider past or present judicial experience for analogies to help in making a decision. This is very flexible way for a common legal system so as to deal with changes that might lead to unexpected controversies. At the same time, stare decisis gives confidence, uniformity, and predictability and contributes to a stable legal environment. In common law system all citizens including government officials are subject to the same set of laws and the state power is limited by those laws. [5]

Original distinction between common and continental law is that, at the beginning, the common law was the law developed by tradition, prior to there were any printed and published laws and continuing to be applied by courts. There is less direct contact with the judges in continental legal system, since they base their verdicts on a documentary proof and the legislation is considered to be the main source of law. Thus, courts base their decisions on the need of codes and statutes. By contrast, case law is thought to be the major source of common law legal system where statutes are mostly considered to be a supplementary to judicial opinions and taken narrowly. The fundamental principle of division of powers is seen rather different in civil law and common law countries. For instance, in common law country such as the United States, judges are thought to be as the person who balances the power of the other branches of government. However, the original idea of division of powers in France was to assign various roles to legislation and to judges, where the latter only applied the law. Moreover, it is commonly believed that common law views are much longer and consist of complex reasoning, while legal opinions in continental system countries are very concise and formal in nature. Practically, this is true case in France, where judges refer to only legislation, yet not to former case law. Conversely, court views in German-speaking countries might be as extensive as English ones, and usually discuss prior cases longer.

Civil Law Versus Criminal Law

Civil law based on a state, federal statute or ruling by the court represents situations in which people have been harmed or damaged, and a financial compensation might assist in resolving the situation. In civil litigation, the accused is never imprisoned, yet can be fined by the state as the compensation to the victim.

Criminal law is the body of law that identifies crimes, investigates their nature and provides with the punishment because offences threaten and harm public safety and welfare. The offender is subject to be penalized by either imprisonment or certain amount of financial compensation paid to the government or even in rare situations, the death sentence.

The distinction between civil and criminal law is also observed in the punishments that are imposed to those that have been found guilty of the charges imposed. For civil law cases, penalties come in the type of compensation mostly in the form some amount of finances that will be awarded to the victim and his or her family. In criminal law situations, compensation may also be awarded to the victim and his or her family along with some form of punishment, frequently involving imprisonment determined and decided upon by the court. [6]

Criminal Procedure In Common Law Legal System Versus Criminal Procedure In Continental Legal System

Continental and common law systems vary substantially in criminal procedure. In continental legal system the judge is the person who actively participates in determining the facts of the case using inquisitorial system while investigating major crimes in most continental system countries. Furthermore, the emphasis on written argument weights more rather than the oral one. The inquisitorial system of criminal procedure is accepted in such countries as Germany and France, yet Italy and Spain attempts to converge inquisitorial and adversarial styles practiced in the systems of common law. The primary difference between the models of creating the criminal process lies in the rationalization of the aims of the process. The former believes that the criminal process is the key to resolution of a disagreement between the accuser who mostly acts as the prosecutor and the guilty where the necessity of documentary evidence occurs in that case when it is important for solving the dispute. However, the latter tries to find the truth of the happened incident and the judge is mostly dependent on documentary evidence. Furthermore, jury is considered in criminal procedure only in Common legal system, while that in Continental legal system does not play a significant role. In common law legal system, the trial judge, the investigators and the prosecution are separate functions. When an investigation has been accomplished, the trial judge supervises proceedings grounded in the adversarial system of dispute resolution, where both the prosecution and the defense prepare arguments to be presented before the court. In some continental legal system countries, the adversarial procedures have been adopted as well. The advocates of each system tend to believe that their system defends best the rights of the innocent. There is a trend in common law countries to think that continental law or inquisitorial systems do not possess the so-called “presumption of innocence”, and do not provide the defense with sufficient rights. By contrast, there is a tendency in countries with an inquisitorial system to consider that accusatorial proceedings excessively favor rich defendants who can afford large legal teams, and are very harsh on financially disabled defendants. [7]

Civil Procedure In Common Law Legal System Versus Civil Procedure In Continental Legal System

In general, civil procedure is the model of rules by which courts run civil trials. “Civil trials” concern the judicial decision of claims by one individual or group against another and are to be differentiated from “criminal trials” in which the state accuses an individual for violation of criminal law. Procedure should be distinguished from substantive law where the latter defines the rights and responsibilities of daily conduct. Substantive law includes such tradition as contract law and tort law. Civil procedure strictly applies only in formal courts of law, even though the most of suits filed in the United States are settled before trial through negotiated settlements or arbitration. In American common law system, civil procedure frequently takes the form of a series of rules and judicial practices. The federal courts pursue the Federal Rules of Civil Procedure; the government courts follow their own state rules of civil procedure. A number of reasons explain the significant contrasts in the law of evidence between the continental and common law systems. One of the most crucial of these is the issue of jury. In civil actions in common law jurisdictions, a range of exclusionary rules prevent the jury from being misled by unreliable evidence. Furthermore, in the common law world we can notice that there is nothing extraordinary in the awarding of penal damages, multiple damages and so-called general damages in civil actions as opposition to defendants whose conduct is malicious. By contrast, in the civil law such harms are rarely accessible to a plaintiff in a civil proceeding.

These days, theory and practice of civil procedure in both continental and common law legal systems has been converged. Common law courts have left the ideology of party supervision and increasingly benefit from interventionist role in preferring what issues should be decided in the case and what procedures should be followed. [8]

Convergence Theory

As legal systems carry on resembling each other in their applying of sources of law, there might be evolved a case when both statutes and cases are being applied in identical measure and even considered to be as authoritative as each other. There is a trend to give more weight on views of legal or doctrinal writes in common law jurisdictions, although in areas of law that are comparatively undeveloped such as medical law and probably a significant reduction in the weight attributed to local custom in the “modernization” of systems of law. This makes a person think that the convergence of systems is gradually occurring across the globe. However, as far as legal families are concerned, it still important and useful to accurately examine common law and continental law systems according to the criteria I have been discussing above. Wholesale convergence is certainly not a possible prospect in the foreseeable future, yet a introductory attempt at harmonization of feature of systems has already started in the context of European Union [9]

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