Tradition of Criminal Justice

“Compare and Contrast the Common Law tradition of Criminal Justice with the Civil Law tradition using actual examples where possible” There is a general agreement that there are three major legal systems in the world; “English Common Law, Continental Civil Law, and Religious Law” (S M Shahidullah, 2012:13). Each legal system carries their own individual traditions which help explore how the systems have developed over time and it is these legal traditions that are used within society to ensure it runs smoothly and effectively as they provide all citizens with rules which they must obey by and follow. This paper will aim to compare and contrast the general features of two of the three major legal systems which are the Common Law and Civil Law traditions of Criminal Justice, incorporating actual examples. The essay hopes to initially state a general background and history of what each type of Law is; before going on to compare and contrast each component of the Civil and Common Law traditions of Criminal Justice.

The components to be discussed will generate a clear structure for this essay and will be as follows; firstly, Sources of Law; secondly, The Court Systems; thirdly, Justice Actors; and finally the Criminal Process, before concluding the essay. It is onto the history of each tradition in which this essay continues. Through briefly exploring the history of Civil and Common Law traditions it aids in an understanding of the essential philosophical foundations of both traditions. The Civil Law tradition is the older of the two and it originates from the Roman Republic in the second century B.C (J G Apple, 1995:3). The name derives from the ‘just civile’ – the civil law of the Roman Republic and the Roman Empire. In the Roman legal system the role of the ‘jurist’ – who was a person of legal experts – aided in making “fundamental contributions to the development” of the system (J G Apple, 1995:3). This was when the Civil Law tradition began to develop, as it was this time period in which the ‘Twelve Tablets’ was born, “the first written law and rudimentary system of dispute resolution in Ancient Rome” (V O’Connor, 2012:9). The next major period which saw Civil Law progress was in the 6th Century A.D, this was when the ‘Corpus Juris Civile’ was commissioned to be written by the Emperor Justinian of Constantinople. The ‘Corpus Juris Civile’ codified many different areas of the Roman law which included things such as; inheritance, property, contracts and family (V O’Connor, 2012:9). The first contemporary European University was established in Italy during the Enlightenment Period (11th – 15th Centuries) and it was here that students from all over Europe came to study Civil Law and took these influences back to their home countries. Unlike the Civil Law tradition, according to Dr Vivienne O’Connor “the development of Common Law has been described as a ‘historical accident’, arising from the conquest of England by the Normans in 1066 A.D” (O’Connor, 2012:11). It was the Common Law tradition which introduced the idea of a jury, and this strategy was popular among the public as the jury was made up of “mostly illiterate people” (O’Connor, 2012:11) which it still is today in modern Common Law systems. The main idea of the jury was to represent interests of everyday people and to decide the fate of a person being prosecuted after hearing all the information. In 1701 an independent judiciary arose from the Act of Settlement and shortly after this a well-known legal academic, Blackstone, published his Observations of the Laws of England, and this helped to develop the America Law (O’Connor, 2012:11). After this the Common Law impact spread world-wide to many countries from Australia to South Africa (O’Connor, 2012:11). One of the most commonly known differences between the Civil Law tradition and the Common Law Tradition is the source of law for each. The term ‘source of law’ is understood to be “the authority from which the laws derive their force” (Legal-dictionary). Historically, the distinguishing difference between the two traditions is that the Civil Law source is from codified law whereas, on the other hand, the Common Law source is simply judge-made case law – although in recent developments there has been evidence where Civil Law “incorporates developments of case-law” (Dainow, 1966:427) and Common Law “includes legislative encroachments”(Dainow, 1966:427). In Civil Law countries “Parliamentary legislation is the principal source of law” (O’Connor, 2012:11) and this legislation is made up of separate statues, codes and ancillary legislation.

The book which contains all Civil codes is what holds the different laws which control the relationships between people. Usually the book of Civil codes encompasses the following topics; obligations and contracts, persons and the family, successions and donations, civil responsibility, things and ownership, lease, sale, matrimonial property regimes and acquisitive prescription (adverse possession) and special contracts, as well as liberative prescription (statute and limitations) (Dainow, 1966: 424). According to Dainow 1966, a code is a body of general principles which are cautiously arranged and carefully integrated rather than special rules for certain situations (Dainow, 1966:424). It would be these codes or legislation that the judge would use to decide the outcome of each separate case and would not use “another case for guidance even if the facts were identical” (O’Connor, 2012:12). This was done because it was understood that the codes contained all the relevant information in order to decide a Civil Law case, and also believed that “the legislature makes the law, not the judges” (O’Connor, 2012:12). When looking at the source of law for Common Law countries, the picture is very different. Civil Law was “developed top-down by legislation” (O’Connor, 2012:13) whereas Common Law was “developed historically on a case-by-case basis from the bottom-up” (O’Connor, 2012:13). Historically Common Law focused on resolving differences at hand instead of producing legal principles. In Common Law, when a court would decide the outcome of a particular case “its decision was not only the law for those parties, but had to be followed in future cases of the same sort” (Dainow, 1966:424). Of course there would be times when new problems would arise and these problems would bring new cases which in result developed the rules of Common Law, and therefore “judicial decisions were both the source and the proof of the law” (Dainow, 1966:425). With the development of Common Law brought the conception of ‘Precedents’ and a system named ‘Stare Decisis’ which ensured the whole system was kept consistent, fair and definite.

Overall, in contrast to Civil Law, “where judges are tasked with applying the law only, Common Law judges were tasked with making the law” (O’Connor, 2012:14). Both the Civil Law and Common Law traditions are similar in the fact they both desire to find the truth, however, the way in which both court systems are set up to achieve this are different. The main difference within the Court Systems of each tradition is that “Common Law courts are unified” (O’Connor, 2012:17) whereas in Civil Law countries “several separate court systems often coexist” (Apple, 1994:24). A Civil Law tradition has numerous sets of courts which all have their own judiciary, jurisdiction, procedure and hierarchy (O’Connor, 2012:15). In addition to this the Civil Law system has a theoretical distinction between ‘public’ law and ‘private’ law (Apple, 1994:23). The overall rule is that ‘ordinary courts’ deal with private law cases whereas public law cases have their own separate jurisdictions, specifically, constitutional law and administrative law (O’Connor, 2012:16), and the courts to deal with public law matters, in contrast with the ‘ordinary’ courts of private law, would be; social security, administrative, commercial, labour, and agriculture courts (O’Connor, 2012:15). Within the Civil Law tradition verdicts of ‘Ordinary Courts’ can be appealed to ‘Appellate Courts’ and above the ‘Appellate Courts’, at the top of the ‘Ordinary Courts’ stands the ‘Court of Cassation’ (O’Connor, 2012:16). The ‘Court of Cassation’ ensures “uniformity in the law” and “decides on only questions of law and the interpretation of statutes” (O’Connor, 2012:16). This court can also support the decision of the ‘Appellate Court’ or proclaim the decision to be unfitting. Overall, the Civil Law system follows the custom of unique codes for the different areas of the law and favours the “speciality court systems and speciality courts to deal with constitutional law, criminal law, administrative law, commercial law, and civil or private law” (Apple, 1994:37). Whereas, the Common Law tradition favours a combined court system with courts of common jurisdiction available to judge criminal law and most forms of civil law cases (Apple, 1994:37). The Court System of the Common Law tradition appears to be a simpler system to that of the Civil Law tradition because all Common Law courts are unified, “meaning that there is generally one Appeals Court and one Supreme Court in which any case may be subject to final scrutiny” (O’Connor, 2012:17). The distinctive Common Law court system can be seen as a pyramid, with the lowest ranking court at the bottom, working its way to the highest ranking court at the top of the pyramid. The applicable courts to the Common Law system in England and Wales are – beginning with the lowest; the Magistrates Court, the County Courts, the Crown Court, the High Court, the Court of Appeal, the Supreme Court, the Judicial Committee of the Privy Council, and lastly at the top of the pyramid the European Court of Justice (Gearey, 2012:46). Lately there has been a change in the sense of the development of specialised courts within Common Law for example; Tax, Family Law, Employment, and so on (O’Connor, 2012:17). Overall, the Common Law Court system prefers an integrated system to decide the outcome of criminal and most types of civil cases “including those involving Constitutional Law, Administrative Law, and Commercial Law” (Apple, 1994:37). Within each Court systems there are different Justice Actors which are essential in the proceedings within both the Civil Law tradition and the Common Law tradition. The Justice Actors’ of the Civil Law tradition and the Common Law tradition show another major difference within the two systems. The Civil Law tradition, having a total of ten roles, has more Justice Actors than the Common Law which only has six.

The Civil Law Justice Actors are; the sitting judge, the investigating judge, prosecutor, police/judicial police, defence counsel, lawyer/avocat, the victim, jury and lay judges, notary and the academic (O’Connor, 2012: 17-22), and the six Justice Actors of Common Law are; judge, police, prosecutor, defence counsel, jury, and the victim (O’Connor, 2012:22-24). The three main Justice Actors of; the judge, the police, and the jury will be further explored. In the Civil and Common Law tradition the judge is a vital associate of the courts. A judge within a Common Law system “is a much more powerful figure than in the Civil Law” (O’Connor, 2012:23) as previously stated they not only decide the outcome of a case but they create the laws themselves. At trial in a Common Law case it is the duty of the judge to act as a referee between the prosecution and defence. In contrast to a Common Law judge who ‘referees’ cases, the investigating judge in Civil Law traditions is “responsible for leading the criminal investigation which includes interviewing the accused, the victim and witnesses; and preparing the case file to be passed on to the sitting judge” (O’Connor, 2012:17). A sitting judge is there to hear a Civil Law case in court and it is their job to “question witnesses, and experts, and calls evidence” (O’Connor, 2012:18). The next role within the systems is the role of the police. In the Civil Law tradition there are particularly selected ‘judicial police’ who help the prosecutor and investigating judge in the criminal investigation. In contrast to the Civil Law tradition, the role of the police in the Common Law system is to conduct the “initial investigation of a crime, from minor to more serious crimes, without any supervision from a prosecutor” (O’Connor, 2012:23). The final Justice Actor within the systems to be explored is the Jury. Juries have always played a major role in Common Law systems and the role of the jury is “to determine ‘beyond a reasonable doubt’ whether the accused person is guilty or innocent” (O’Connor, 2012:24). Juries normally only exist in Common Law countries but recently there has been a development of them in Civil Law systems such as France and Belgium (O’Connor, 2012:21) and the duty of the jury in Civil Law is the same as the Common Law tradition. In what follows, the final component to be described between the Civil and Common Law systems is the way in which a case is conducted within each of the traditions. The procedure of a court case in the Common Law tradition can be described as adversarial whereas in the Civil Law tradition the procedure is described as inquisitorial. The inquisitorial model in Civil Law “aims to attain justice with the composite effort of the prosecutor, the police, the defence lawyer and the court” (Acharya, 2003:63). On the other hand the adversarial model in Common Law “advocates the supremacy of law, that is equal treatment of law for all segments of society” (Acharya, 2003:65), and a crucial part of this system is legal representation from both sides. The criminal proceedings for each of the Civil and Common Law traditions go through the same five stages of; investigation, indictment, trial, verdict and sentencing hearing, and lastly appeals, but it is the way in which these stages are conducted that show the differences and the main stage to be further explored is the nature of the trial stage in each tradition. According to O’Connor, “the Common Law trial contrasts greatly from the Civil Law tradition” (O’Connor, 2012:29). There are many differences within the trial stages but four main differences within each tradition of the trial stages are; time, central players, witnesses, and evidence.

Firstly, a trial within a Common Law country tends to be lengthier than the Civil Law trial because of the requirement of ‘live testimonies’, whereas because the judge in a Civil Law trial can look over the case files prior to the trial starting, it will be a much quicker trial (O’Connor, 2012:26). The next key difference lies within the central players of the different trials. In the Common Law trial the central players “are the prosecutor and the defence counsel while the judge acts like an impartial referee between the two” (O’Connor, 2012:29), but in a Civil Law trial the judge is the central player to find the truth and “neither the prosecutor nor the defence counsel takes centre-stage in the trial” (O’Connor, 2012:26). The third difference to be recognised can be seen when it comes to the witnesses in the trial, and the difference is very simple. In a Common Law trial the prosecution and the defence “call their own independent experts to make their case” whereas in a Civil Law trial if expert witnesses are called they “belong to the court” (O’Connor, 2012:27). The final difference in the trial stage is when it comes to the evidence of a case. Evidence within a Civil Law trial is much wider than in the Common Law trial because the Civil Law advocates “free evaluation of evidence” (O’Connor, 2012:27). On the other hand, Common Law is “bound by very complex rules of evidence, and rules for exclusion of certain evidence” (O’Connor, 2012:27). To conclude, this essay has aimed to compare and contrast the Civil Law tradition with the Common Law tradition by giving a brief history on each before exploring the components of; sources of law, court systems, justice actors and the criminal process. It has been found that the one main similarity in the two traditions is safeguarding the public and society but the differences lie within how this is done. Overall, the difference in the sources of law is that Civil Law is codified whereas Common Law is judge-made based law. The next difference lies in the court systems and the Civil Law tradition has several separate court systems in comparison to Common Law which is seen as a unified court system.

This third difference can be distinguished from the justice actors in the sense that Civil Law countries have more Justice Actors than a Common Law country and the duties of each of these roles may slightly differ. The final component to show a difference between the Civil and Common Law traditions is the trial stage of the criminal process, and the four main differences lie within time, central players, witnesses and evidence. References Prof. Madhav Prasad Acharya, 2003. The Adversarial v. Inquisitorial Models of Justice.KSL Journal, Vol 1, Pages 63-70. James G Apple, 1995.A Primer on the Civil-law System. 1st Edition. Federal Judicial Center. Joseph Dainow, 1966. The Civil Law and the Common Law: Some Points of Comparison.The American Journal of Comparative Law, Vol. 15, No. 3, pages 419-435. Harry R Dammer, 2011.Comparative Criminal Justice Systems. of+the+.

Wadsworth Publishing Co Inc. Melanie Davidson, 2014. Court Structures of the Common Law World.The Good Law Guide, Pages 1 – 59. Professor Thomas Fleiner, 2005. Two Legal Systems.Common Law and Continental Law, Pages 1 – 34. Adam Gearey, 2012. Common law reasoning and institutions.International Programmes, ., Pages 1-263 Dominik Lengeling, 2008. Differences, reciprocal influences and points of intersection.Common law and civil law, Pages 1 – 32 Peter O. Nwankwo, 2011.Criminology and Criminal Justice Systems of the World: A Comparative Perspective. of+the+.

Trafford Publishing. Dr. Vivienne O’Connor, 2012. Common Law and Civil Law Traditions.INPROL, Vol 1, Pages 5 – 35 Francis Pakes, 2004.Comparative Criminal Justice. of+the+. Willan Publishing (UK). Philip L. Reichel, 2012.Comparative Criminal Justice Systems: A Topical Approach (6th Edition). 6 Edition. Prentice Hall Shahid M. Shahidullah, 2012.Comparative Criminal Justice Systems: Global and Local Perspectives. 1 Edition.

Jones & Bartlett Learning Sources of the law legal definition of Sources of the law. 2015.Sources of the law legal definition of Sources of the law. [ONLINE] Available at:https://legal-dictionary.thefreedictionary.com/Sources+of+the+law. [Accessed 15 March 2015].

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