Common And Civil Law Legal Systems Law Essay

In general, law is set of general rules, regulations and principles accepted in some community and to applicable only in its territory, which is written by legislative authority. There are a lot of functions of law in the society and business. Some of the roles of the law are to keep the peace, shaping the rules of conduct and moral standards, promoting social justice and individual freedom, facilitating planning and orderly change and also protecting the environment. Law has been developing through many centuries and always changing according to the community’s social life, traditions and moral principles. Nowadays there are as many legal systems as many number of countries in the world. However all country’s over the world developed and incorporated their own laws based on three main types of legal systems such as Civil law (Continental law), Common law and Religious (Islamic) law. All these three legal systems have their own features and histories which helps us to differentiate and learn easily. In this essay I am going to discuss two main legal systems Common and Civil Law Legal Systems and their criminal and civil procedures.

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Common Law Legal System

Common Law Legal system is one of the most famous and widespreadly used system in the world. [1] En.wikipedia.org (2010) suggests that This system was originated from England in the Middle Ages and very common source of a lot of Western and Eastern countries such as United States of America (except Louisiana where English criminal law combined with French civil law), England, Ireland, Canada, Pakistan and Singapore which were colonized by British Empire. The main feature of the Common Law Legal System is that compare to other legal system the Judge is the main authority. . In this legal system the principles and rules of action based on decisions of courts made by judges and similar tribunals (similar cases) to decide future cases, rather than codified rules and legislations. Common law system these similar cases called as a precedent. The precedent which is might be applied to solve some problems is called as a binding precedent or mandatory precedent. Sometimes Judges in order to solve some cases uses not the exactly same precedents, but similar or precedents with some relevant information, such type of precedents called persuasive precedents. In some practical cases common law system is not ideal system to use, sometimes some controversial or more considerably complicated features may occur. Moreover, in Common law the decisions of the judge or court only compulsory within particular jurisdiction and some courts have more authority than others. The weight of court decisions also makes Common law different from Civil law system. By contrast, in civil law jurisdictions judge has more self-determination to interpret the given codification rather then predictability like common law system judges.

Civil Law Legal System

Civil (Continental) Law is a modern legal system originated by Roman law especially the system is derived from Code of Justinian, (during the Middle Ages the emperor Justinian played an important role on the development of the Civil Law System) as later developed by legal scholars later. This system is the most ancient and common legal system in the world. The main and unique feature of the Civil law is that it is collection of written and codified rules in the form of civil codes which are applied and interpreted by judges. [2] 

Criminal Procedures in Common and Civil Law Legal System

Common Law and Civil Law Legal systems differ considerably in criminal procedure and civil procedures. Although some systems, including the Common legal system, let private individuals to bring a criminal prosecution against others, prosecutions are nearly always started by the state, in order to punish the defendant. However Civil law legal actions are started by private individuals, companies or organizations. The cases are usually in different courts, and juries are not commonly used in civil cases. [3] 

In both Common and Civil law systems the criminal procedures are significantly varies than in civil law systems. In criminal cases the government will be against the individuals the prosecutor will be on the sight of government and will protect the rights of the victims (society or government) and also in lower case actually the jury will be employed. In criminal procedures as a solution to the case Judge can decide the person who made crime to some sentence, such as fine, jail or time. In the next following sentences there is given how the criminal procedure will be taken in Common law legal systems according to the David Carnes:

“Prosecution

Although a criminal defense lawyer is obligated to advocate the defendant’s interests, a prosecutor is obligated to seek justice even if it means refusing to charge or convict a defendant. Because of this, the decision of whether to prosecute rests solely with the prosecutor. Although most prosecutions are commenced in response to an arrest by the police of the filing of a criminal complaint by the police of a private citizen, a prosecutor has the authority to initiate prosecution unilaterally.

Bail

Bail is a sum of money that the defendant must pay to remain free between the bail hearing and the conclusion of the trial. The purpose of bail is to give the defendant a motive to show up at trial (in order to get the bail money back). Judges can set bail higher or lower depending on their estimate of how likely the defendant is to show up at trial. In many cases, bail is denied.

Plea Bargaining

A plea bargain is a written agreement in which the defendant agrees to plead guilty to a lesser charge, in exchange for which the prosecutor will recommend to the judge that the original charges be dropped and that a previously agreed upon sentence be imposed. The judge does not have to accept the prosecutor’s recommendations. Prosecutors are willing to plea bargain when they face busy trial dockets, and when the available evidence raises doubts about whether the defendant will be eventually convicted.

Trial Practice

Trials in common law countries are adversarial, meaning that the prosecution and the defense initiate almost all action while judges are relatively passive, acting as referees. For example, if the prosecution attempts to admit evidence that should be excluded under the rules of evidence, the evidence will normally be admitted anyway unless the defense objects to its admission. In this case, a convicted defendant may appeal on the basis that he received “ineffective assistance of counsel”. Although every criminal defendant is entitled to demand to be tried by a jury, if no demand for a jury trial is made then the judge will determine guilt or innocence.

Sentencing Regardless of whether or not a jury is empanelled, the judge will determine the sentence (within statutorily defined ranges) if the defendant is convicted. The defendant is entitled to present evidence, such as good prior behavior or mitigating circumstances, that may convince the judge to imposed a lighter sentence.” [4] 

Continental Legal Systems is the fundamental source of the Civil Procedure. It mainly refers to the civil law takes into account almost all the cases not related to criminal issues the laws almost all the cases which is not related to criminal issues such as business, estates, legal contracts, accidents and domestic issues and intended to protect individual’s liberties and civil rights. Civil procedure refers only to the procedures, not the laws. In Civil procedure the role of lawyers are very important and it is specialized area of to practice them. However civil law and criminal law may overlap each other. In such cases the problem will be judged under both criminal and civil procedures. For instance, if the bus driver hits the people walking on the street and kills that person he can be tried in criminal court for killing the innocent people and the victim’s family members be able to give him to the court for the same case under the civil procedure.

Conclusion

In conclusion, I would like to state that law is very controversial and very complicated subject to learn. How deep you learn it you will discover more questions to answer. Sometimes you can discover such laws which can overlap each other.