Continental And Common Law Legal Systems Law Essay

The Continental and Civil Law Legal Systems can be truly considered to be the most prominent legal systems in the world which laid a foundation for legislation in many countries. Although, nowadays it can be quite difficult to find a distinguished boundary between Continental and Common Law Legal Systems (as they have adopted each other’s practices to a large extent), the legal scholars point out the list of criteria which might be employed to differentiate between those two legal systems. For instance, some scholars proposed “culture” or “language” to be used for classification. Others insisted that it must be ideology which stipulates peculiarities of Continental and Common Law Legal Systems. However, most of the scholars do agree that historical background and types of the sources used are the most objective criteria.

The Continental Law Legal System takes its origin in Roman Law in times when it was first codified by Roman emperor Justinian. Justinian’s efforts resulted in compilation called Corpus Juris Civilis. The fact that Corpus Juris Civilis was a main object for study in the Italian universities of Renaissance period enabled the Roman Law to spread over the rest of Europe and greatly influence European legal systems. The result of such influence was a continued tradition of codification during the age of enlightenment (in XVIII century) when separate national codes such as The French Napoleonic Code, German and Swiss codes were developed.

The Continental Law Legal System has been formed under the influence of legal scholars whose legal doctrines became a basis for codes. Therefore, it is commonly accepted that civil law was developed in the universities rather than in courts. In other words, the written rules such as legislative statutes have been the main source of law in civil law countries. It is precisely this fact that explains a diminished judge’s role in Continental Law Legal System. Since a civil judge has to apply already existing codes for resolving cases instead of expressing his judicial opinions there is much less importance attached to a civil judge’s merit in contrast to his common counterpart.

Common or English Legal System was first developed in England and Wales. It was later adopted by many countries throughout the world as a result of British colonisation. Australia, South East Asia, India and Hong Kong are the countries with “received” common tradition. The Common Law Legal System has been developed out of unwritten rules and customs. In common countries the cases are resolved by “judge-made decisions” which follow the principle of stare decisis, i.e. “to decide similar cases similarly” [] . This fact explains the importance of case law as a primary source of English Legal System.

Procedural and Substantive Law

Procedural and Substantive Law are two branches of law which can not function independently from each other.

Substantive Law can be described as a body of rules which sets out the rights and obligations of members of society [] . On the other hand, Procedural Law encompasses legal rules to enforce and defend such rights and obligations. For instance, it is a substantive law that defines murder as a criminal offence. Meanwhile, the Procedural Law describes the way the arrests have to be made, witnesses are questioned and evidences are collected.

Civil Law and Civil Procedure versus Criminal Law and Criminal Procedure

Civil Law is a form of private law and involves the relationships between individual citizens [] The Civil law attempts to resolve disagreements between individuals or organizations and to provide remedies. It should be emphasized that unlike criminal law, the civil law does not intend to punish the offender. Contract disputes, property disputes, divorce cases, child custody and other private matters are the issues regulated by Civil Law.

Criminal law is a branch of law which concerns crimes committed against the public authority. [] In contrast to Civil law where the remedy typically takes the form of compensation or fine, the offender in criminal proceeding can be punished by imprisonment, government supervision, loss of liberty, fine and even execution.

The civil and criminal procedures are different in terms of claimants bringing the case into court and parties involved in the trial process. Civil proceeding is initiated by the plaintiff represented either by an individual or an organization which strives to obtain a financial compensation for incurred damages. By contrast, any criminal proceeding is enforced by the state through the prosecutor. This happens because any crime against an individual is considered to be an offence to the society.

The prosecutor prepares evidences and charges against the accused criminal. Therefore, the burden of proof lies solely upon the prosecutor, which means that the prosecutor is responsible for providing evidences against the defendant. On the other side, the plaintiff is the only person to have the burden of proof in civil cases. Whereas it is enough for plaintiff in civil procedure to persuade that the wrongdoing was likely to take place rather than not, the prosecutor has an obligation to prove that the crime was committed without any doubts. In other words, the standard of proof in civil and criminal procedures is different: civil cases must be proven on the balance of probabilities and criminal cases – beyond a reasonable doubt.

In fact, the offence might be criminal and civil violation at the same time. For example, in case of car accident when there is an injured person, the driver is subject to criminal as well as civil procedure.

Civil procedure in Common and Continental Legal Systems

The significant differences in civil procedure of Common and Continental Legal Systems are stipulated mainly by the adherence either to the so-called “inquisitorial” or “adversarial” systems. Despite the fact that there have been a lot of borrowings recently in both systems, “inquisitorial” tradition is broadly defined as a prerogative of Continental Law trials, whereas Common Law trials follow “adversarial” system.

One of the factors which explain the substantial differences in civil procedures of Common and Continental Legal Systems is a judge’s role. In civil procedure governed by continental tradition the judge examines the evidences, questions the witnesses and prepares report, i.e. controls all aspects of the trial. Meanwhile, the role of judge in common civil procedure is that of a passive observer listening to the arguments and evidences presented both by a plaintiff and a defendant. Therefore, a Continental Law judge bears more responsibility for the trial rather than his Common Law counterpart.

Another point of divergence in civil procedure of Common and Continental Legal Systems is the stages of jurisdiction. In continental civil procedure these stages can be defined as preliminary stage, evidence-taking stage and decision making stage. As it can be noticed, the continental civil procedure never includes the trial stage which is sometimes a part of civil procedure in Common Legal System. This can be explained by the fact that in Common Legal System the trial is believed to be a final stage which necessarily includes a jury. Therefore, under such definition the trial does not exist in continental civil procedure. Instead of the trial the continental civil procedure consists of “a series of isolated meetings and written communications between counsel and the judge…” [] 

The next important difference concerns an evidence-taking stage. As a matter of fact, the common lawyer is obliged to formulate the whole case at the very beginning which is an unusual practice for civil lawyers who prepares only some pieces of evidence for the first appearance before the court. Consequently, the degree of importance assigned to discovery process is much less in continental civil procedure rather than in common.

Although in continental civil procedure the judge is directly involved in the evidence-taking part of the proceeding, the case should be resolved by other judges. In contrast, the examination of evidences and the resolution of civil case are direct obligations of a single judge in common law tradition.

The continental and common civil procedure uses written and oral arguments respectively. For example, during the witness testimony in common civil procedure the questions are asked orally by the advocates of both parties, whereas it is compulsory for the continental advocate to propose a question in written form to judge who can either accept or reject it. This example illustrates not only the difference in common and continental civil procedure in terms of oral or written arguments but also in the presence of cross-examination. In other words, cross-examination does not take place in continental civil procedure.

Civil procedures in Common and Continental Legal Systems differ in terms of parties who incur counsel fees. In the former case, except for England, counsel fees must be paid by each party regardless of the case’s outcome. On the other hand, in civil law countries, the loser covers the winner’s counsel fees.

Criminal procedure in Common and Continental Legal Systems

A lot of differences in civil procedure of Common and Continental Legal Systems discussed above can be applied to criminal procedure as well. The explanation beyond this is what tradition, adversarial or inquisitorial, the Legal System follows. For example, the role of impartial referee assigned to the judge in common civil procedure is the same for judge in common criminal procedure. Alternatively, in both continental civil and criminal cases the judge acts as an inquisitor. Moreover, the witness testimony in criminal procedure of both legal systems follows the same pattern as in civil procedure. However, there are some distinctive differences which uniquely determine criminal procedure in Common and Continental Legal Systems.

First of all, the criminal case in Common Legal System is initiated by the wronged person, his relatives or any other member of the society. A presiding officer is appointed then to hear and decide the case. By contrast, the private accuser in continental criminal procedure is replaced by public official, who represents the State’s interests. In other words, the contest has shifted from two individuals to an individual and the State.

Secondly, the difference can be found in examining phase of criminal proceeding. At this stage the evidences are collected followed by compilation of the dossier. While it is allowed to disclose the dossier to the defense in continental criminal proceeding it is prohibited in common legal proceeding.

Thirdly, in common criminal procedure the defendant must be sworn and can not refuse to answer while being questioned. On the contrary, this practice is not applied to criminal justice system in continental countries where the case is exactly the opposite.

Another important difference in criminal procedure of Common and Continental Legal Systems is plea bargaining. In contrast to common criminal procedure where plea bargaining is a distinctive feature, the prosecutor power is limited in continental countries. Moreover, in common countries “the defendant who pleads guilty forgoes a trial” [] . In civil countries, however, the plea guilty is not a hard evidence for defendant’s guilt. Therefore, the trial necessary takes place.

Finally, it is wrongly believed that there are no concepts of jury trial and presumption of innocence in civil criminal proceedings. In fact, “a legal presumption of innocence does exist in many civil law jurisdictions” [] , although in some civil countries it may not exist as a formal rule of law. Similarly, the jury trial is replaced with lay advisers. However, the verdict of lay advisers is not always a conclusive ruling for the defendant to be accused or acquitted.

Conclusion

In conclusion, I would like to say that as our world tends to move toward globalization the borders between Continental and Common Law Legal systems, and as a result, between procedures of those systems become feebly marked. As an example, Continental Legal System has started to rely more on previous cases whereas a lot of importance is attached to statutes in modern common law countries. Base themselves upon that fact, a lot of legal scholars speak out in support of convergence theory which suggests a creation of single legislation for all countries throughout the world. Will this theory ever become a reality? Time will show. However, to my point of view, before it becomes possible we have to reach the convergence of cultures, ideologies, moral values and political attitudes.