The curiosity of lawyers around law systems and the desire to compare them is not new to the researchers. Civil law, or else called the Roman law, is a name for a system of legislation that was firstly induced in Europe. The core of the civil law is compiled on the basis of the Roman law; its most compelling components are systematized into an identifiable structure, which functions as the essential source of law. The structure of the common law differs from the civil law system. The intellectual groundwork of the common law is derived from the decisional law, which is constituted not by unambiguous legislation but by judicial conclusions. This leads to enabling precedential authority for preceding verdicts of the court based on the fact that it is inequitable to administer analogous facts individually regardless of the occasion.
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The civil law represents a faction of legal concepts that are obtained from the Code of Justinian; however, they are superimposed on various practices, such as Napoleonic, Germanic, archaic and regional. Theoretically, civil law advances from cogitations, specifies generic foundations and divides substantial decrees from procedural regulations. While examining the civil law and explaining its principles, it is essential to keep in mind the theoretical diversity between a statute and a codal discourse. The codes with an abrupt piece of writing serve as a distinct element of civilian systems; these regulations often lead to avoiding quite definitive scenarios. Codal articles operate in abstraction, thus facing the contradictions with statutory regimes, as they have rather lengthy and profoundly accurate schemes.
The evidence is closely investigated by a court or a judge during a civil trial; these actions allow concluding by a ‘preponderance of the evidence’ whether the litigant should take legal responsibility for the impairments declared by the complainant. A civil litigation gives the plaintiff a chance to contend in the case; the plaintiff will be able to receive a judgment made by the jury against the litigant during the trial. On the contrary, the trial allows the defendant to disprove the charges of the plaintiff by displaying the information or clues linked to the investigation and the case in general.
The judge announces a verdict after hearing the arguments and examining the testimony from both sides and considering “whether to find the defendant liable for the plaintiff’s claimed damages, and if so, to what extent (i.e. the amount of money damages a defendant must pay, or some other remedy)” (“Civil Cases – The Basics” par. 2). The process of the civil trial may vary; it is determined by the category of case that is being investigated. For instance, an outcome for divorce cases regularly relies on the statements of not only the plaintiff but also the defender. In this case, he judge or the jury comes to a resolution where one companion is favored to one subject, such as child custody, and another companion deals with other matters.
A compassed civil trial commonly includes six essential stages: “choosing a jury, opening statements, witness testimony and cross-examination, closing arguments, jury instruction, jury deliberation, and verdict” (“Civil Cases – The Basics” par. 4).
Choosing a jury
There are some cases where the plaintiff and the offender are not able to pick a jury, as the trial is held by a judge, such as family trials. In other cases, the choice of a jury is a first and quite a substantial step. The both sides of the case are communicating with the help of their attorneys for the most part; together with the judge they would interrogate the group of probable jurors. The judge has the power to distinguish possible jurors relying on their replies during the questioning. Moreover, at this stage both sides are able to “exclude a certain number of jurors through the use of ‘peremptory challenges’ and challenges for cause. A peremptory challenge can be used to exclude a juror for any reason (even gender and ethnicity in civil cases), and a challenge for cause can be used to exclude a juror who has shown that he or she cannot be truly objective in deciding the case” (“Civil Cases – The Basics” par. 6).
After selecting a jury comes an opening of statements. This is a term for a first official exchange of assertions between the two sides: the plaintiff and the defendant, who are represented by their attorneys. There are traditionally no witnesses and no physical evidence on this level of trial. The plaintiff needs to establish the juridical answerability of the defendant regarding the pressed charges; as a result, the opening statement of this side ordinarily is introduced at the beginning of the trial and frequently consists of more features, details and particular aspects than the statement of the offender.
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Witness testimony and cross-examination
The core of the civil trials is witness testimony and cross-examination when both sides demonstrate their essential clues and assertions to the court. In other words, the evidence used by the plaintiff has to persuade the jury that the offender bears lawful responsibility for the pressed charges. Moreover, this stage also includes the right of the plaintiff to invite his or her witnesses or specialists for testifying for the trial.
After hearing the testimony of the applicant, questioning his witnesses and examining physical evidence, the jury calls for a defendant. The offender has a right to introduce his evidence the same ardent fashion in order to contradict the charges of the plaintiff. “Once the defense has rested, the plaintiff has an opportunity to respond to the defense’s arguments through a process known as ‘rebuttal’, a brief period during which the plaintiff may only contradict the defense’s evidence (rather than present new arguments). Sometimes, the defense may in turn have a chance to respond to the prosecution’s rebuttal” (“Civil Cases – The Basics” par. 17).
The closing argument is analogous to the opening statement; it provides both sides with a chance to summarize their performance by recapitulating the clues in a light amicable to the stance of both the applicant and the offender. This is a stage where the parties receive the opportunity to show to the jury why the offender is guilty, to prove his legal accountability for the impairment of the plaintiff and to demonstrate whose dispute has more credibility.
The next stage of the civil trial regarding reaching a verdict is jury instruction. It is a process where the jury receives a list of juridical standards from a judge in order to conclude whether the offender is responsible for the asserted damage. The juridical standards mentioned above that should be used in the trial are determined by the judge on the basis of the testimony and clues. Moreover, the judge also specifies “key concepts, such as the ‘preponderance of the evidence’ legal standard; defines any specific claims the jury may consider (i.e. ‘fraud’, ‘breach of contract’. ‘emotional distress’); and discusses different types of damages (i.e. compensatory and punitive) — all based on the evidence presented at trial” (“Civil Cases – The Basics” par. 21). After that being done, the dispute is passed to the jury.
Jury deliberation and verdict
With the help of directives received from the judge, the team of jurors scrutinizes the dispute through a procedure of ‘deliberation’ in pursuit of understanding whether the offender is guilty and if so, what would be the applicable rectification. For the first time during the trial the jurors get a chance to debate over the case. Once the group of jurors accomplishes the deliberation and agrees on a decision, they notify the judge, and he reveals it in the open court.
Common law is promoted by judges “through decisions of courts and similar tribunals that decide individual cases, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch” (Dainow 424). Nearly 2.3 billion people accounting for one-third of overall populace of the planet have adopted a common law system or live in areas of authority of common law combined with civil law.
The judges of common law system build their resolutions around preceding juridical declarations; moreover, they have confidence in the judgment of their forebears on substantial controversies rather than abstruse constitutions or documents. Therefore, the judges of this system advocate their conclusions on law reports with prior debates. They are obliged to stand by the formerly settles cases with extensively similar evidence by the doctrine of Stare Decisis.
Different mundane situations, social adjustments, creations, and revelations that influence the conclusions of common law lead to the necessity for the judges to cover more than already existing information. As a result, the renewed structure of common law tolerates examining other areas of authority and observing the similarities in order to reach an appropriate verdict. Due to its resilience, the system permits the judges to cope with advances that conduct to unforeseen controversies. In the meantime, the legal principle of determining points in litigation according to precedent maintains confidence, equality, and consistency, which are essential for a secure and permanent legal environment.
In his research, Dainow gave a definition to a common law system and established the primary elements of it:
“Under a common-law system, disputes are settled through an adversarial exchange of arguments and evidence. Both parties present their cases before a neutral fact-finder, either a judge or a jury. The judge or jury evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favor of one of the parties. Following the decision, either party may appeal the decision to a higher court. Appellate courts in a common-law system may review only findings of law, not determinations of fact. Under common law, all citizens, including the highest-ranking officials of the government, are subject to the same set of laws, and the exercise of government power is limited by those laws. The judiciary may review legislation, but only to determine whether it conforms to constitutional requirements.” (Dainow 427)
The common law operates in a form of adversarial structure; in other words, it is a competition between conflicting sides, where the judge acts as a mediator. A group of jurors consists not of lawyers but of common people who do not have a legitimate training or a law degree.
The difference between civil law and common law
Generally speaking, more than two-thirds countries in the world function with one of the two legal systems already discussed in this paper: common law and civil law. According to the research, almost 150 nations live under civil law; while about 80 countries use common law legal practice as its primary. Moreover, an overwhelming majority of nations exploit a mixture of characteristics from both systems. One of the central distinctions between common law and civil law is “that in common law countries, case law — in the form of published judicial opinions — is of primary importance, whereas in civil law systems, codified statutes predominate” (Syam par. 2).
Below we will provide a table that clearly shows differences between common and civil law; after the table an explanation will be added.
|Aspect||Civil Law||Common Law|
|Inscribed constitution||Not consistently||Consistently|
|Juridical decisions||Necessary||Not necessary for 3rdparties; nevertheless, administrative and constitutional court agreements on rules and adjustments necessary for everything|
|Documents of legal scholars||Small impact||Compelling impact on several administrations of civil law|
|Exemption of contract||Comprehensive: only several supplies were signified by law into juridical relation||More restricted: plenty of supplies were signified by law into juridical relation|
|Court structure regarding PPP projects||Mostly often juridical relationship is submitted to private courts||Most PPP projects are thought to be linked to a public service and, therefore, are submitted to civic law|
Inscribed constitution. Despite the fact that there is no direct rule, common law practice is not always adhering to a constitution. However, in civil law nations a code of various laws that includes rules for distinct areas is the core of the constitution.
Exemption of contract is rather comprehensive in nations that implemented common law system, meaning that extremely low percent of supplies is involved in legal contracts. Civil law nations, on the contrary, have a more refined approach to contracting with provisions.
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Nowadays, the diversity between common and civil legal doctrines prevails in the substantive origin of law. In order to fully understand the range of differences, a historical background has to be examined.
The historical element
English monarchy is considered to be a starting point of the initial origin of the common law structure. There is evidence of using so called ‘writs’ by the monarchy: writs were a written solemn orders, and they were submitted only when there was a need for justice. Unfortunately, the writs were not able to provide for every occasion. As these innovative determinations were composed and printed, the court was able to examine independent assessments and use them in the current law practice. As we can see, that was a first attempt at developing the common law, and rather successful.
The creation of the civil law, however, has a completely different background: the civil law system can be followed back to 600 A.C., to the times of the Roman Empire during the reign of Justinian. His set of laws became a countdown for developing and expanding analogous legal systems in discrete nations. “Throughout the early modern period, this desire generated scholarly attempts to systematize scattered, disparate legal provisions and local customary laws and bring them into harmony with rational principles of civil law and natural law” (Dainow 431). There had been various attempts of combining civil and natural law with its balanced conventions. That was until 1631 when the Dutch lawyer Hugo Grotius managed to integrate Roman law and traditional legal system into a united entity.
Roles of an attorney and a judge in each system
In countries where civil law system is implemented, the judges are in the role of investigators. As Syam states, “they generally take the lead in the proceedings by bringing charges, establishing facts through witness examination and applying remedies found in legal codes” (par. 5). Lawyers of the civil law are still the defendants of their clients, but throughout years they obtained a less key position. The responsibilities of the lawyer in the common law court, however, are more complex: they involve informing the clients about relevant laws and legal strategies and assembling legal imploring for filing.
“But the importance of oral argument, in-court presentations, and active lawyering in court are diminished when compared to a common law system. In addition, non-litigation legal tasks, such as will preparation and contract drafting, may be left to quasi-legal professionals who serve businesses and private individuals, and who may not have a post-university legal education or be licensed to practice before courts.
In contrast, in a common law country, lawyers make presentations to the judge (and sometimes the jury) and examine witnesses themselves. The proceedings are then referred by the judge, who has somewhat greater flexibility than in a civil law system to fashion an appropriate remedy at the conclusion of the case. In these cases, lawyers stand before the court and attempt to persuade others on points of law and fact, and maintain a very active role in legal proceeding. And unlike certain civil law jurisdictions, in common law countries such as the United States, it is prohibited for anyone other than a fully licensed lawyer to prepare legal documents of any kind for another person or entity. This is the province of lawyers alone.” (Syam par. 7)
Based on everything mentioned above, we can come to a conclusion that lawyers were always of high demand, their role in the courtroom was and remains to be compelling regardless in which country they perform. Nevertheless, there are various administrations and legal approaches that differ from country to country; in order to study the subject of common and civil legal system more profoundly we provided several examples of the nations that execute civil or common law.
Common Law: The United States, England, India, and Canada.
Civil Law: China, Japan, Germany, France, and Spain.
As a conclusion, I would like to mention that although common and civil law have their differences and similarities, these two systems are gently closing in one. The established practice of common law embodies more legislative objectives of law; moreover, civil customs grant more precedential influence on their tribunal process, thus reducing the need for legislation. The borders between common and civil legislation system are fading and creating an opportunity to establish a wholesome system.
Civil Cases – The Basics, 2013. Web.
Dainow, Joseph. “The Civil Law and the Common Law: Some Points of Comparison.” American Journal of Comparative Law 15.3 (1967): 419-435. Print.
Syam, Piyali. What is the Difference Between Common Law and Civil Law? 2014. Web.