Legal Proceedings in Common Law Jurisdictions and Civil Law Jurisdictions

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Legal Proceedings in Common Law Jurisdictions and Civil Law Jurisdictions

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Themes

Rule of law, comparative law, roman law, legal proceedings, jurisprudence, criminal law, tort law, intellectual property law, labour law, private law, public law, EU european union, CJEU Court of Justice of the European Union, Tampere Conference, human rights

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Abstract

Common law and civil law jurisdictions are often regarded as antagonist interpretation of the rule of law in modern societies. Indeed, both constitute the dominant views of law in general, as they are "often made the basis of comparative law studies". The bipolarisation of the legal systems can either be perceived as the result of the process of domination of the Western views on law in general, or the level of trust granted to the case law makers by the national system according to its history, traditions, value, and State organization. While common law emerges from a traditional view held by the Anglosphere emphasizing the "ordering of relations and adjustment of conflicting interests and determining the disputes [by] the regularity and certainty of the natural and the moral orders", it is not the case for the civil law. The latter was well designed by the Roman law, and "had a history of some two thousand years" before having been popularized, in modern times, by Germans and French legislators throughout the world.

Major Differences Between the Common Law and Civil Law Jurisdictions Regarding the Legal Proceedings
1. Roles of Judges and Lawyers in Both Systems
2. Principles of Discretionary and Mandatory Prosecution
A Progressive Neutralization of the Differences Held by Common Law and Civil Law Jurisdictions in Legal Proceedings?
1. The Development of International Public and Private Law
2. The Process of Harmonization and Approximation of the Law in the European Union

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Extract

[...] Legal Proceedings in Common Law Jurisdictions and Civil Law Jurisdictions Common law and civil law jurisdictions are often regarded as antagonist interpretation of the rule of law in modern societies. Indeed, both constitute the dominant views of law in general, as they are "often made the basis of comparative law studies". The bipolarisation of the legal systems can either be perceived as the result of the process of domination of the Western views on law in general, or the level of trust granted to the case law makers by the national system according to its history, traditions, value, and State organization. [...]

[...] The progressive attenuation of the inherent differences between civil and common law jurisdictions is also made throughout the instrument of regional importance, such as the European Union law. The Process of Harmonization and Approximation of the Law in the European Union Through primary law, secondary law, and case law of the Court of Justice of the European Union, the EU law is constantly pushing forward the harmonization and approximation of the law of its Member States. The process of harmonization of normative rules, especially rules of legal proceedings, is an old stance in the European Union. [...]

[...] Two visions can be mentioned as clearly distinguishing the approach of the common law and civil law jurisdictions. It is especially striking when studying the roles of judges and lawyers in both systems and the differences between the principles of discretionary and mandatory prosecution Roles of Judges and Lawyers in Both Systems In both substantive and procedural law, judges and lawyers play a key role in the viable functioning of a law system. It is common to call the common law jurisdictions, following Bentham's appreciation of its own judiciary system in England during the 18th century, a "judge-made law" which shall be understood as "the growth of the law at the hands of the judges". [...]

[...] This system is applied in the United States, generally known as the respect for the principle of nolle prosequi. Although it is favourably seen by the jurisdictions of the common law (yet not followed by all countries of common law), many civil law jurisdictions follow this principle, such as Japan. The discretion does not exist in the case of a system ruled by the principle of mandatory prosecution (known as the principle of compulsory prosecution). Under this system, the prosecuting attorney does not have the choice. [...]

[...] DAINOW J. (1966) "The Civil Law and the Common Law: Some Points of Comparison", The American Journal of Comparative Law 419-435. DEHOUSSE F. (2017) The Reform of the EU Courts, Brussels, Egmont Institute. EMMERSON B. et al. (2012) Human Rights and Criminal Justice, London, Sweet & Maxwell. GROUSSOT X. et al. [...]

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