The role of law is very important for the government and for a human being. As the Cicero pointed out "Law is the highest reason implanted in nature, which commands what ought to be done and forbids the opposite." Without the knowledge of law a person loses his freedom.
Moreover, if people do not know their rights, they will be easily manipulated. So, law is intended to protect person's rights and his property from unwanted interference from others.
There are many categories of law. These include contract law, property law, criminal law, constitutional law, administrative law, and international law. Each of these sets the rules for a distinct area of human activity. The law plays significant role in society, because without law there will be lawlessness, which historically has led to a general breakdown in society, sometimes to the point of a near-standstill in the economy. [2]
In my essay I am going to investigate the key differences of Common and Civil legal systems by distinguishing one from another.
Outlining the way I am going to achieve the aim of essay: to explain the differences between Civil and Common legal systems, I would like to highlight some issues I will cover and techniques I will use which can ease the understanding. I will examine methodological approach to codes and codifications, criminal and civil procedures, structure of court system using comparative method.
The History of Law
The Legal systems
"The history of law is the history of civilization, and law itself is only the blessed tie that binds human society together." [3] As Peter Landry pointed out the law is like everything we do and like everything we say, is a heritage from the past.
It has been recognized that law and history are inextricably linked. Carl Joahim Friedrich called law "frozen history." [4]
Law is ancient, dating back at least to the Code of Hammurabi, written by an ancient Babylonian king around 1760 BC. Today, most countries have tens, hundreds or thousands of pages of law. Law is written by legislators, such as senators or congressmen. Talking about legal systems, I can say that it has become established to classify the legal systems of the world into 3 main types of legal traditions or legal families: civil, common and socialist law. Merryman pointed out that a legal tradition puts the legal system into cultural perspective. [5] Zweigert and Kotz assert that "no worthwhile method of classification has appeared because the matter turns on interpretation and terminology and the different approaches are largely consistent with each other." [6]
In 1978 David and Brierley adopted the system to classify the legal systems into seven law families according to ideology, the historical background and legal technique. [7] The Civil and Common Legal Systems are also within this classification.
Continental Legal System
The distinguishing feature of Civil Legal System is that it is written into a collection, codified and not determined as in common one. Civil Law is a legal system inspired by Roman law and all the legal ideas in this system are obtained from the Code of Justinian. This legal system holds legislation as the primary source of law.
As regards the court system, it is usually released by precedent. The principle of civil law is to provide all citizens with an available and written collection of the law which apply to them and which judges must follow. This system is the most predominant and ancient legal system in the word. [8]
However before applying the term Civil or Common legal system to some countries, I think it is important to point out that legal system "is an operating set of legal institutions, procedures, and rules" and the quantity of legal systems exist can be as many as states and organizations in the world. For example, it does not mean that some countries like Germany, Italy and France which are grouped together as a Civil Law's ones do have the same operating legal systems. The reasonable assumption why they are organized in such a way is just the fact that they "have something in common" what differentiates them from common or another legal system. [9]
Common Legal System
The common law is the body of law that developed through the decisions of judges deciding outcomes on a case by case basis. [10] In this system, past cases and their decisions are relied on to determine what the outcome ought to be in a current case. Common law legal systems are widespread in England, United States of America, Australia, Malaysia and others. Common law has no statutory basis; judges establish common law through written opinions that are binding on future decisions of lower courts in the same jurisdiction. [11] State courts are the primary source of common law.
The decisions of a court are binding only in a particular jurisdiction and even within a given jurisdiction some courts have more power than others. Judges have authority and duty to make law by creating precedent. Consequently the new decision becomes precedent and will bind future courts. In future cases, if parties differ on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. In this case, if a similar controversy has been resolved in the past, the court is bound to follow the reasoning used in the prior decision.
Having explained the nature of civil and common legal systems now I can move to the explanation of main differences between them.
Differences between Common and Civil Law
The original difference is that, historically, common law was developed by custom, beginning before there were any written laws and continuing to be applied by courts after there were written laws, whereas civil law developed out of the Roman law of Justinian's Corpus Juris Civilis.
The difference between these 2 legal systems is not just the fact of codification, but in the methodological approach to codes and statutes. In civil law countries, legislation is seen as the primary source of law. By default, courts base their judgments on the provisions of codes and statutes, from which solutions in particular cases are to be derived. The underlying principle of separation of powers is somewhat differently in civil law and common law countries. In some common law countries, especially the United States, judges are seen as balancing the power of the other branches of government. In France, judges cite only legislation, but not prior case law. In some Civil law countries judges are trained and promoted separately from attorneys, whereas common law judges are usually selected from accomplished and estimable lawyers.
Judgment in common law varies whereas in civil law, the judges have to strictly follow the codified rules. On the contrary the role of judge in common law countries during the trial process is not significant and being only "the manager of the trial" he/she lets lawyers to be main players by fulfilling almost the same tacks which civil law's judge performs. [12]
Substantive and Procedural Law
Some people confuse law with justice, but as Raymond Chandler said, "The law isn't justice. It's a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law was ever intended to be." [13]
Substantive law and procedural law are the two main categories within the law. "Substantive law refers to the body of rules that determine the rights and obligations of individuals and collective bodies. Procedural law is the body of legal rules that govern the process for determining the rights of parties." [14]
Substantive law refers to all categories of public and private law, including the law of contracts, real property, torts, and criminal law.
Civil and criminal procedure
Differences between criminal and civil procedures
Civil and criminal procedures are extremely different. Mainly because civil laws are malum prohibited, which means that they are against the law like speeding and parking violations. They do not result in loss of freedom as criminal laws; they can result in loss of privileges or fines. As for criminal laws, they are malum per se, which means that actions are against the moral principles of society. Usually they are punished with fines or loss of freedom through prison or probation.
Civil procedure is the rules and regulations applied to civil matters. Civil actions are started by private individuals, companies or organizations. The cases are usually in different courts and also the juries are not used so often in civil cases. Usually in civil cases the result is an award of money to be paid by one party to another. A judgment does not include imposition of a criminal sentence. [15]
Civil Law deals with controversies between private parties that can cause harm to others. For example, if individuals or companies differ with the ownership of land or building or if the person was discharged from his work wrongfully, they can bring a lawsuit asking the courts to determine who is right. Sometimes depending on the circumstances, a person may be held liable for any injuries that happen as a result of the negligence. Family law involving divorce, spousal support, child support, parental responsibility for children present a large proportion of the civil law cases presented to the courts. Applicant is the party who brings the legal action. The court may reject the case or the courts also can order the losing party to take corrective action in the situation where if it is found to have a merit.
Moreover, the court can order to pay damages- a monetary award for the harm afflicted, it is considered as a usual outcome. A big point I would like to underline is that the state plays no role in civil cases unless the party is being sued. Parties may choose a lawyer to present them or to collect evidence and present the case in court. [16]
In a civil action, the court may be asked to issue order, award monetary damages or dissolve a marriage, but imprisonment in civil procedure is impossible situation. However the exception is when court orders a parent to pay child support and the parent obstinately refuses. [17]
Discussing the civil procedure, I consider that it is important to list areas of Civil law which are Administrative Law, Bankruptcy, Commercial law, Computer law, Constitutional Law, Consumer law, Contracts, Education Law, Family Law, Health Law, Labor Law and others.
The basic source of law in civil procedure in Continental Law is a code of civil procedure. As our lecturer Malika Mukimova pointed out, actually there is no veritable trial in the sense of a single culminating event. A civil law action consists of continuing series of meetings, hearings and written communications during which evidence is introduced, testimony is taken and motions are made and decided. [18]
As regards criminal law, the police gather evidence and in court public prosecutors present the case against the person defendant of the crime. Criminal chargers are initiated in court by a government prosecutor. The government is always involved, because crimes are supposed as "offenses against the people" [19]
Areas of Criminal Law are burglary, kidnapping, robbery, murder, Drug and Narcotics Offenses, breaking and entering, also shoplifting, smuggling, rape and others. In criminal procedure, action is taken by the state against a person for a violation of the law. A criminal matter can result a sentence such as probation, a fine or time in prison.
The rules of civil procedure are different than rules of criminal procedure because proceedings are different. It is important to admit that since a criminal matter can result taking away a person's freedom, there are additional constitutional protections built into the rules of criminal procedure. Another difference is that in Civil Law there will be no jury in the court in spite of civil or criminal procedure. Nowadays some continental countries added a jury to give a more democratic aspect to the court system. But the jury deliberates with the magistrates and does not have independence of common-law type jury. [20]
"The typical civil proceeding in Civil Law is a series of meetings and written communications between counsel and the judge, where evidence is introduced, testimony is given and procedural motions are made. Besides one of the distinguishing characteristics of civil law proceeding is evidence is received and the summary record prepared by someone else than the judge who will decide the case" [21] In my opinion this can be seen as defect, mainly because it deprives the judge of the opportunity to see and hear the parties and to evaluate statements directly.
Criminal procedure is significantly different in common law systems than in civil law systems.
In Common Law, the trial is usually conducted in inquisitional way. However the criminal procedure in civil law is based upon the adversarial system. In countries with a democratic system and the rule of law, it is up to the prosecution to prove that the accused is guilty beyond any reasonably doubt. So, all jurisdictions allow the defendant the right to legal counsel and also provide a defendant who cannot afford a lawyer with a lawyer paid for at the public expense. Nowadays under modern codes of criminal procedure, the defendant has the right to remain silent and to be represented by counsel during the interrogation which is the formal questioning the person arrested for committing a crime.
Moreover, in civil law judges are more passive than in Common Law. But it does not mean that judges are passive in taking decisions, actually they are passive during the proceedings which mean they do not ask questions to witnesses.
As for civil procedures, the judgment does not include the imposition of a criminal sentence. It is not common to use a jury and also in civil procedure there is no public trial. However the trial in criminal procedure is most usual. Both criminal and civil cases involve a dispute over the rights and responsibilities of the people involved. In civil matters, the issue is usually money. In a criminal case, however, the defendant might be ordered to pay a fine or sentenced to probation, jail or prison, or even death.
One of the most important differences is the matter of jury. In civil actions in Common Law a variety of rules determining admissibility or inadmissibility of offered evidence has the desire to prevent the jury from being misled by untrustworthy evidence. [22] "Hearsay rule" can be discussed as a good example in this case.
"If a witness states that he overheard a conversation and is asked what he heard, then the response in a trial at common law will be: "Objection, your honor, hearsay." This is because the witness is not testified about what someone else said. That person should be brought before the court to testify in person, where his statements may be subjected to cross-examination" [23]
As we can see, such rules do not exist in civil law because of the absence of a jury in civil actions. However, it does not mean that in civil law proceedings evidence can be freely introduced without any restrictions.
Conclusion
The main conclusion that can be drawn is that the law is an immensely complex social machine and it is different almost in every country. The law is continually in need of repairing, patching and from time to time overhauling in this or that area. There is a clash in the opinion that procedures are becoming similar that is known as convergence theory. Bearing in minds that each country has its specific rules, therefore the idea of convergence theory is relatively unrealizable.
Under the contemporary pressure of globalization, Civil Law and Common Law systems show several signs of convergence while there are very different legal cultures, processes, moral values and different attitudes to law in the world today.
However, European Union (EU) law contributed to the convergence between Common and Civil Legal Systems. As a consequence, EU opened the way for convergence and creation of a common legal framework among different countries.
From my point of view, it is much more effective to use both Legal Systems in the way of development of a country, because convergence includes advantages of both Common Law and Civil Law. The reason is that convergence of Common Law and Civil Law can only contribute to the main goal of building up a fair society which provides legal certainty to all people living in it.
