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Understanding Continental And Common Law Legal Systems Law Essay

The concept of law has been developing for several thousand years already. From the Code of Ur-Nammu (approximately 2100 BC) to modern laws, they went in accord with human civilization emphasizing social priorities of their time. The more law developed and came closer to perfection, the more complex and complicated it became. On the way to make laws best suitable for their time and society different approaches were used, which resulted in numerous laws that vary considerably. Each of them makes up a system in their own territory of power that is called legal system which regulates all relationships between legal and physical persons as well as their relationship with the state.

Accepting the derivation, origins of law as main criterion, we can classify legal systems into following two families, given that we do not consider religious systems. They are Continental or Civil law legal system also termed as Romano-Germanic and Common law legal system. Of course, there are many other types of classification criteria such as ideology, geography, history but the one we are using is accepted to be the best criterion of our time.

In the following paragraphs we will be looking through important phases of litigation and identifying the differences of common and continental legal systems both in civil and criminal procedures.

CONTINENTAL LAW OR CIVIL LAW LEGAL SYSTEMS

Continental law is a legal system that has laws written into a collection, codified and are created only by statutes, legislation, parliament or supreme legislative organ. This is the most often met legal system in modern world.

The main concept of Continental system was first created in Roman Empire by the initiative of emperor Justinian – “Code of Justinian” in 530 AD and was spread widely. Later, with the invasion of German tribes, this system experienced considerable changes after which it became Romano-Germanic legal system. Not only this, but also, during the Middle Ages, such concepts as natural law, ecclesiastical practices, legislative positivism and others also shaped this system. Roman system served as basic conceptual component to all modern Continental legal systems.

Civil legal system proceeds general principles, distinguishes substantive and procedural rules, also it holds legislation as primary source of law. There are no precedents used in court system of civil legal systems. The courts are inquisitorial which means that the judge endeavours to know facts about the case and at the same time he/she represents the interests of the state in trial [1] . Judges in this system are specially trained judicial-officers. [2] 

The very basic tenet of this oldest surviving legal system is to provide society and people with written collection of laws that will apply them and that judges must follow. (Zweitgert & Kötz, 1998)

Some of the countries where civil law applies are France, Germany, Uzbekistan, Japan and others.

COMMON LAW LEGAL SYSTEMS

Common law system is a legal system in which not only legislative authority but judges also can issue laws and make changes to them. Common law judiciary system follows “similar cases should be solved similarly” principle and says “it is unfair to treat similar facts differently on different occasions” [3] . Common law system countries follow that rule and to do so they use precedents. Precedents are the solutions of previous cases that must be followed by judges to solve the similar cases. If there is no adequate precedent in system, judge has the authority and obligation to create one, which in turn will be binding for future decisions [4] . In contrast to inquisitorial courts in civil law legal system, common law courts are adversarial [5] which means two sides present their cases to a neutral judge who is passive during the process.

History of Common law system goes back to medieval England where it has been developing from 11th century. At that time there were regional laws and judges used to travel from place to place to solve the cases. Dissimilarities in regional laws caused dissatisfaction of people. This problem gradually led to increasing number of appeals against the judges’ decisions to a King who could change the verdict. In the beginning the King personally solved the appeals, later the number of appeals made it impossible for the King to do it personally, which resulted in creation of royal court system that was common for all regions. As this system developed, no longer there was need for traveling judges. Gradually, common law acquired the modern form.

SUBSTANTIVE AND PROCEDURAL LAWS

It is accepted that there are two types of law in terms of the way they apply to the people. They are substantive and procedural laws. The law that creates, defines, and regulates the rights, duties and powers of parties is called substantive law [6] . In other words, substantive law answers the question “what?” and gives the solution. Whereas procedural law answers the question “how?” and deals with the method and means by which substantive law is made and administered [7] .

CIVIL PROCEDURE IN CONTINENTAL AND COMMON LAW LEGAL SYSTEMS

As mentioned above, procedural laws regulate the process and the usage of substantive law, mainly in courts. There are two of them: Civil procedure and Criminal procedure.

“Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits” [8] where both parties are either physical and/or legal persons. According to www.wikipedia.com, these rules are designed to regulate all aspects of court’s functioning, such as, processes and their sequence in the court including the judgment process. Also, it covers the timing matters; functions, responsibilities and obligations of acting parties and responsible figures; deposition, discovery and disclosure issues and importantly, possible remedies [9] .

Before we move on to the differences of two legal traditions on the topic, important point that clarifies following dissimilarities should be stated. It is important that in continental legal system judge acts as guarantor of justice regardless the lawyers’ abilities, which is of great importance in common law tradition, where the responsibility of gathering and presenting the evidence lays primarily on lawyers and their parties. What these systems have in common is that “every civil lawsuit involves at least two parties—a plaintiff making a claim and a defendant resisting it. [10] ”

One of the main differences between legal systems is that common legal system divides the civil lawsuit into pre-trial and trial stages whereas there are series of hearings in the continental system. Different approach is observed towards the class action referring to a limited number of people having the right to sue to prove the rights of much larger group [11] . In contrast to continental legal system that does not use this practice, common law system authorized class action and racial segregation break in United States is good example for that. The difference in notification process is that summon and complaint are separate and should be delivered in person in common law but in continental law they are combined into one document called assignation and personal delivery is not compulsory [12] . If defendant does not appear, court in common law will make “default” judgment [13] , meaning that the case will be solved in favor of the plaintiff. In the same situation, unlike common law courts, continental courts hold plenary hearing.

In continental legal system outside parties – the third parties are allowed to intervene directly to the process to support the party they want to, but in common law such interventions are indirect and can be performed through brief writing in favor of supported party - “amicus curiae” (Latin “friend of the court”) [14] . Another crucial aspect– discovery process in continental law relies on judicially guided investigation and orders of a judge to produce certain documents and witnesses as need for that emerges. But in common law discovery is based on information provided by parties and this information is not disclosed unless opposing party provides substantial reason that they need this information and/or cannot obtain it from alternative sources. Only documents admissible as evidence are subject to discovery disclosure.

The trial in common law can be of two types. One, if there is jury present, the judge is concerned with legal issues and jury considers facts. If not, the judge has full authority and may decide the case immediately or may do it later [15] . The judge can make either general or special verdicts. The first is final conclusion, the second is made in particular cases where judge himself leads the jury to the decision.

Equivalent for trial is main hearing in continental law that may have several judges and be held in several sessions. Also, no testimony is needed in main hearing. There are preparatory hearings before the main hearing that aim at presenting the proof and narrowing the issue to base the verdict on. Hearing of witnesses, expert reports, examination of parties through special court order are types of proof proceedings in continental law. In contrast to general verdicts of common courts, final judgments of continental courts are specific, pointing out the legal ground for decision.

CRIMINAL PROCEDURE IN CONTINENTAL AND COMMON LAW SYSTEMS

Above all, let’s accept the criminal procedure as “the legal rules dealing with investigating, prosecuting, adjudicating, and punishing individuals for violating criminal laws” [16] . And go through main stages of criminal procedure to distinguish dissimilarities of continental and common legal systems.

In the investigatory phase, in continental law the suspect has the right to ask the investigating authority to help him to collect the evidence for his defense, while in common law he is expected to do this himself [17] . The police plays primary role in investigation in both systems but the difference is that they perform investigations on their own authority in common law and public prosecutors will supervise them in continental law. The suspect is put under pretrial detention only when he is thought to destroy the evidence and/or run away in continental law, whereas in common law he is usually arrested, and released only with bail and the surety that he will not escape and/or destroy the evidence. [18] 

One of the main differences of two systems is that in common law the trial will not take place if the suspect confesses himself guilty after which the judge goes on to determine the penalty. But in continental law regardless the confession the hearing will be held [19] .

Another important point is that “in continental systems, the court decides, on the basis of a single comprehensive trial, both on the guilt or innocence of the defendant and on the penalty if he is found guilty [20] .” Differently, common law “provides for separate sentencing hearings, which typically take place a few weeks after the defendant has been found guilty of the charges.”

CONCLUSION

To sum up, we looked through the differences of common and continental legal systems in terms of criminal and civil procedures. There are a lot of them and this does not make either of the systems better or worse because each has its own advantages and drawbacks. What we can conclude around the main figure of litigation process – the judge is that he is public servant and has the obligation to follow the laws without the right to change them in continental law. But what he can do is to interpret laws, while in common law he is the hero of the public and has the right to create the law but is bound with them to follow.

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