Legal Issues

There are various legal systems and traditions which originated in the past century, the common law and the civil law traditions. These notions are used to differentiate two legal systems and approaches to the law. The common law tradition refers to the legal systems that have assumed the historical English legal traditions (Merryman and Perez-Perdomo 1969). This is the system upon which the legal system of America and Great Britain are based as well as most of other Commonwealth and former Commonwealth nations. The civil law tradition, on the other hand, is the legal system upon which the political order in the rest of Europe is based. The civil law is sometimes known as the neo-Roman law. Other terms that refer to the civil law are the Romano-Germanic law and the continental law. The expression civil law emanates from the translation of the Latin term jus civile. This term refers to the citizens law that was the Late Imperial term to define its legal system. This is as opposed to the statutes governing conquered people, jus gentium. Different legal traditions have various origins and therefore have different theories and procedures in the application of justice (Merryman 1985). The paper seeks to study the similarities and differences between the common law and the civil law traditions. The similarities between the two traditions are not as numerous as the differences. In order to define the ways, in which the two are similar or different it is important to have background information about them.

Background information 
The common law tradition, as it was the case in America, originated from the European feudal period, which was inherited from Great Britain in the colonial era. The common law tradition identifies two key aspects, the custom and the equity. Whatever is considered incorrect by the society can be considered as illegal without necessarily being documented as illegal. The reason for this is that the system is based on customs.  The custom makes models which then become policies. It is due to this reason that the principle of stare decisis arises. The other aspect, equity, mirrors the common lawful traditions sense of fairness, in that incorrect decisions cannot be made, so that customs can be protected (Merryman and Perez-Perdomo 1969).

Common law is the law established by judges through court decisions and comparable tribunals. The common law system is based on the belief that it is not fair to handle common facts in a different way on different occasions. The body of precedence in this tradition binds future decisions. In any future case, when there are conflicting arguments on what the court decision should be, the court of justice considers the previous precedential decisions of similar cases in the past. If a similar case had already been considered in the past, the court follows the reasoning used in that court decision. This is the principle that is referred to as stare decisis (Merryman 1985). If the court finds out that the current case is fundamentally different from all previous cases, a situation refers to as a matter of first impression, judges have the power to establish law by creating precedents. Therefore, the new decision that has been made the precedent is capable of binding future court cases. In practice, the common law systems are more complicated that explained theoretically. The court decisions only bind in a specific jurisdiction. Even within a jurisdiction, some courts have more authority than others. For instance, in many jurisdictions decisions made by an appellate court only binds the lower courts in the same jurisdiction and the future decisions of the appellate court. Nevertheless the decisions reached by lower courts are just non-binding persuasive authority. Relationships between the common, constitutional, statutory and regulatory laws make the system more complex. However stare decisis lies at the center of all common law systems (Woolhandler 1997).

The civil law tradition originated from the legal system of the Ancient Rome. In the Ancient Rome, laws were written down into statutes. The legal system had juries whose responsibility was to apply the written laws to specific cases. The tradition was made stronger by the introduction and the long life of the Canon Law of the Catholic Church, which operated in almost the same way as the Ancient Romes statutes. The primary principle of civil law tradition is codification. In the reign of napoleon, it became necessary for nations in Western Europe to come up with all-inclusive codes of law. Every time a fresh code was ratified, it annulled those that preceded it. The incoming did not gain legality due to the fact that it was similar in any way to those that came before it. It gained legitimacy after being integrated and assimilated into the most recent code. It exists on encoded convention (Woolhandler 1997). The codes are established in general abstract principles which direct the exercise of the legal judgment. The doctrinal aspects that are involved in the civil law are natural law, codification and legislative positivism. Basically, the civil law system follows from abstractions, formulation of common principles and distinguishing substantive regulations from procedural regulations. The key source of the civil law is the legislation. The court under this legal system is unlimited by precedence and it is usually comprised of well-trained judicial actors. The basis of civil law tradition is to offer every person with accessible and codified collection of statutes applying to them and which all the judges must base their decisions on concerning any case (Merryman 1985).

The primary source of law in the civil law tradition is a compendium of laws, organized by subject matter and in some pre-arranged order. In the civil law tradition, there are laws that are written and organized in a particular order that that should be followed strictly in the determination of any case. In short, judges make decisions basing on the written laws.

A code can be described as a methodical collection of related articles which are put down in a brief staccato fashion. Law codes for this system are established by legislatures ratification of a fresh law that embodies all the old laws that are related to the subject and includes all changes that are deemed necessary by court decisions. In some cases the changes result in establishment of a fresh statutory idea (Jenkins 2003).

Similarities and differences 
The two systems are legal systems that are used in deciding cases in a court of law. In both the civil law and the common law tradition there is certainty of results. On deciding the fate future cases, the judges refer to cases that were similar in the past and the principles that were applied are used.  In both systems there are statutes where court decisions are based and judges who decide the cases. In the two systems there are attorneys who also play a role in the system (Deffains and Kirat 2001).

The civil law is commonly based on the Roman law. It is especially based on the Corpus Juris Civilis of emperor Justinian. The law was later developed through the middle ages by the medieval legal philosophers. The most dependable modern source is Karl Eduard Zachariae.

Originally, it was the common legal system in most of Europe. The system changed with the development in the 17th century Nordic countries and during the French revolution it was separated into national legal systems (Bakken 1983). The separations were brought about by the establishment of national codes and statutes, especially the Napoleonic Code. The napoleon code got its name from the French emperor, Napoleon Bonaparte. The code includes three components the law of persons, the law of property and the commercial law. Rather than a list of judicial decisions, the code is comprised of conceptually coded principles as rules of law (Woolhandler 1997). Other important codes that developed at that time are German and Swiss codes.  During this period the civil law tradition integrated many theories that were linked to the enlightenment and civilization. Some authors argue that civil law tradition later served as the basis for socialist law that is employed by communist nation. The socialist law is basically the civil law with addition of Marxist-Leninist ideologies. From this point of view, civil law tradition is basically contrasted to the common law tradition which was established among the Anglo-Saxon people. The basic difference in these two systems is that common law was a system developed by custom long before the existence of written law, whereas the civil system was developed out of the Roman law of Justinians Corpus Juris Civilis. They emanated from main beliefs and interpretations of doctrinal coding instead of applying facts to lawful fictions. Later the civil law system was written as droit coutumier or habitual law that were locally complied with and principles that were considered normative. This led to establishment of civil law in places like France, Quebec, Spain and Germany, after the French revolution (Jenkins 2003).

The descriptions of both the common law tradition and the civil law tradition are manmade principles as opposed to natural divisions. Both are ways of separating and comparing the different systems by putting together similar characteristics and analyzing how they contrast from others.  In every legal system, there are two main components the substantive law and the procedural law. The substantive law in relation to the criminal justice describes what comprises a criminal act. The common law basis for this description is the custom where for the civil law it is the written code (Bakken 1983). The procedural law deals with the way that the substantive law is implemented. In the common law tradition, the element of stare decisis links the process to the fundamental precept of custom. Judges are supposed to reach their decisions based on the way similar decisions were reached in the previously. To strike a balance between custom and equity, the common law follows the theory of particularization in procedural law. Particularization lets a judge be flexible in separating a particular case from the previous cases that were similar to it. In this way, he makes himself free in deciding a query based on fairness instead of strictly based on custom. This allows a judge to avoid reaching an unjust decision in the effort to preserve customs (Meyler 2006).

From the descriptions of the primary theories of procedural law in the common law tradition and the civil law tradition, there comes the more exact adjudicatory processes used by them. The common law tradition uses an adversarial process. The civil law tradition uses the inquisitorial process. The adversarial process is the one applied in America. The process originates from real life battles between two opponents where the argument used to be that the winner had the truth on his side and the loser is the guilty party (Deffains and Kirat 2001). With time the real life battles came to be well regulated with procedural regulations and eventually developed to the process that is in existence presently. The fundamental aspect of the adversarial system is that the truth is always determined through some sort of competition. The procedure is always superior to the substance, and therefore to uphold the purpose of the endeavour, cross-examination and multiple players are the support for the process. Cross-examination is suggestive of the sword-fighting of the past because it is an aggressive process that is supposed to discredit the opponent. The players are the prosecutors, the defence attorneys and the judge. The prosecutor declares the defendants guiltiness the defence attorney declares the clients innocence and the judge acts as a referee (Woolhandler 1997).

The civil law tradition is an inquisitorial process that contrasts to the adversarial process. In this process the judge is not just a referee, but an active key player in the process. The judge works through his personal examination of both witnesses and the proof to find out the truth in the matter. The trial in this case is more of a public investigation than the adversarial process conflict of the attorneys. The attorneys in this process do not argue the facts of the case. The attorneys are there to argue before the judge what interpretation of the law these facts are based.  

Trials are supposed to be shared efforts at establishing the truth and therefore theoretically in the process the defendant is meant to cooperate (Jenkins 2003).

Under the civil law tradition, the judge should be capable of gleaning through from the law the most suitable decision through rational reasoning. If this is not achievable, hypothetically, it is usually the judges responsibility for failure to understand the statutes correctly or the legislature for failing to provide the judge with enough code. In a matter of fact, the judge under the civil law tradition cannot get an exact code that is capable of addressing the specific facts of the matter at hand. This is expected because the legislature cannot be expected to predict every possible situation. The intention of the civil law tradition is to deny the judge any opportunity to make law. What happens in reality is that the judge gets the most applicable code and then shows in writing how he rationally got to the facts of a specific case from that code and then reached to a decision (Meyler 2006).

Unlike in the common law system where a guilty plea leads to the termination of the case, if the defendant pleads guilty in civil law system, it does not terminate the case but rather it is considered as additional evidence. In the common law, the court case is aimed at determining the guilty party from the innocent. This is the reason why if the defendant pleads guilty there is no need for moving on with the case. Plea bargaining is acceptable with the common law system but it is not an option in the civil law tradition. This is because the idea of pleading guilty to a lesser crime is unfavourable to the concept of using the statute as it was codified a central objective in this system. A judge who allows the guilt plea is considered in the same perspective as the judge who interprets the law instead of simply following and applying it (Tellegen-Couperus 1993).

Incoming law in the civil law tradition nullifies the preceding ones. This is unlike the common law tradition that does not nullify the preceding codes, but enhance and improve them instead. In the common law tradition, law is associated with custom and that its existence is by fact, the civil law tradition exists because the power, that is, the government has declared it (Meyler 2006).

The common law unlike the civil law tradition is not static. New rules can be formulated to accommodate changes in the new circumstances. Common law changes with the changing needs of the society. As for civil law tradition that is bound by written statutes. This makes the common law tradition is much richer in details that the civil law. It accumulates great wealth of detailed regulations for reference. This in contrast with the civil law tradition which with is limited to whatever is coded. The judges in deciding a case have to refer to the codes and are not supposed to come up with new laws. The common law tradition has a touch to everyday situations because what comprises law is actually what has taken place in the past unlike civil law tradition where the judges have to use written, laws that might have never been used in the past (Meyler 2006).

The common law system tends to be case-centred and thus judge-centred. It allows the scope for a discretionary, pragmatic approach to the specific problems that come before the court. The law is developed on a case to case basis. Once a rule is established in common law tradition, it is rigid and thus leads to inflexibility. This can be a problem once a decision is outdated or is utilized out of context. The common law can be illogical since it is dependent on the situation, society or the judge. In the civil system there is no redundancy because once a law has proven to be a failure, it is amended of repealed. Because the laws are provided by the legislature one does not have to file a lawsuit, like in the common law, hoping that it will reach the highest court in the land and get to be made a precedent. The collections of laws that make the body of common law are vast and enormously complex. This can be time consuming in searching for the relevant cases for a particular situation (Tellegen-Couperus 1993).

The common law as opposed to civil law is a legal system that is the foundation of legal system in many countries. It is the most commonly used as well as the popular legal system as compared to the civil law tradition. The common law system is therefore more common that the civil law system (Jenkins 2003).

Conclusion
Both the civil law and the common law traditions have their own advantages and disadvantages. Each of them is applicable in different countries for various reasons. It is only through extensive research that the best legal system can be established.