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HISTORY & LEGAL SYSTEMS – course 1Introduction
Activity 1: what are the key differences between the common law tradition and the civil law
tradition?
- Precedents: used for common law, not for civil law
- Codification: not for common law <-> civil law is codified
- Values: common law represents values such as individual liberty
- Time: common law evolved over time
- Role of the judges: very important for common law
Be aware of hybrid legal systems across the world (see map on slides)
Approach to legal system
Civil law = inquisitorial system (an impartial officer of state conducts a search for the truth)
The officer just wants to find the truth, the outcome does not matter
The judge is in the driver’s seat directing the process. Judge can ask questions to the
witness.
More flexibility around rules of evidence and procedure.
No strict burden of proof because of increased role of judge.
Common law = adversarial system (judges do not participate actively in the search for the
truth)
It is more about the evidence and battling out
The emphasis on an independent and impartial judge, who can only make decisions on the
issues that the parties indicate tot the court are in dispute and of the evidence introduced
to the court by the parties.
Move towards alternative dispute resolution (court often last resort)
Mason’s quote: civil law = inquisitorial and common law = adversarial is not static, there are
characteristics that appear in both (not complete separate)
The jury in common law
Traditionally, cases in common law are decided by a jury
- Random selection of ordinary people
- In criminal cases they decide on guilt (but not sentence)
- In civil cases they decide on liability and on damages (judge may change damage award)
The judges
In civil law = civil servants -> enter their profession after law school
If they become more experienced, they may be promoted within judiciary to higher courts
In common law = politically appointed or elected among experienced lawyers -> no direct
entry
Once appointed, a judge stays there, unless appointed or elected to a higher court
History and origins of common law
1. Middle Ages (applied within British colonies)
2. 1066 (medieval kings began to consolidate)
3. Writs/royal orders (new forms where each wrong had different remedy)
4. Court of equity (system of writs highly formalised and rigid)
5. Writ system generally abolished, but some writs still exit in modern common law
Blackstone
Doctrine of precedent really takes hold in the 19 th century
- Common law is giving the same weight to precent as legislation
- Specific principles discussed later in course
, Themes in common law: Fairness or due process
- One part of the concept of fairness is the argument that the judge must be unbiased and
fair in the sense of being a neutral party in dispute (adversarial)
No fixed content, it changes over time
- Another aspect is that if evidence exists against the party, that party should be given
adequate facilities and time to consider that evidence
- Audi alteram partem, a Latin phrase which means that you should listen to both sides of
the case before making a judgement. “Listen to other side”
- The idea of due process is changing all the time and then given a different context and a
different meaning
Reasoning in common law systems
Civil law = mostly deductive reasoning
- Proceeding from stated general principles or rules of law contained in the legal codes to a
solution in a specific case
Common law = more use of inductive reasoning
- Deriving general principles or rules of law from a specific decision or a series of specific
decisions extracting an applicable rule and then applying it to a particular case.
The principle of precedent
= a common law judicial decision – has two effects:
1) An end is put to the controversy (perhaps only temporary) before the court (same as civil
law)
2) A “precedent” that will control the disposition of later cases in which the same issue(s)
arise
It combines two elements:
1) The lower court must accept the position held on any given issue by its hierarchical
superior
2) Courts are bound by their own previous decisions (unless they can be distinguished)
They must identify the binding part of the earlier decision and assess whether the two
cases are in fact similar (only certain elements of a case are seen as precedent)
Because it is in an adversarial system, it’s the defense that has to bring it up
-> the judge is impartial, but has the final decision whether the precedent is binding
Identify the binding decision
- Only bound by the ratio decidendi of the previous decision
= the material facts (in other words: core reason for the decision)
- Defining the concept of a ratio in abstract terms could be easy
- Locating it in a specific case can be difficult
- This process is a key legal skill and takes years to refine
Can the earlier case be differentiated?
- Doctrines of precedent only binds a court where the material facts are similar to an earlier
case
- If the material facts can be differentiated, then its ratio will not bind the later court
Obiter dictum = something said but not central to the core legal reasoning that determines
the case
Not binding on subsequent courts
Finding divergent judicial opinions
- Finding ratio can be difficult and complex in higher courts where judges give different
opinions
- Majority may agree on decision bit with different reasoning
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