Distinguishing Civil And Criminal Procedure In Law

Practice Law Essay

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The main purpose of writing this assignment is to distinguish civil and criminal procedure in continental
and common law. For this purpose, in this essay I will identify the difference of sources, the history of
the development of two considerably various legal systems.

Definition of law
It maybe true that the law cannot make a man low me, but it can keep him
from lynching me, and I think thats pretty important. (Martin Luther King
Jr., 1962))
The law can be defined in a variety of forms, for the reason that every individual understands it in
different way.
First of all, before discussing the differences (it necessary to know how it can be understood) I need to
define for myself what law is. Although, there are extremely good definitions which were giving during
lectures and seminars, for any person Law can be a tool which support him to wake up in the morning
in peace, allow to wash his hands and face, have a breakfast, leave the house and use public transport
in order to get to the place he need to be and study or work there and nobody cannot prevent him to do
all this actions, since these are all his rights. All these words above has their deep meaning, namely to
support a person to wake up in the morning in peace means that person who is alive has needs, like
sleep when it is necessary, eat food and etc. So it means that that person has rights to live, first of all,
have rights to use the natural resource for his own needs, have a right to have a property where he can
afford himself to have a breakfast, he has a right to work in order to earn money and has a right to
study where he wants in order to have a job. It can be said that this definition has some similarities with
the further statement: When each citizen submits himself to the authority of law he does not thereby
decrease his independence of freedom but rather increases it. By recognizing that he is a part of a new
dignity of citizenship. Instead of finding himself restricted and confined by rendering obedience to public
law, he finds himself protected and defended and exercise of increased and increasing right.

Legal Traditions and Legal Systems.

A legal system is an operating set of legal institutions, procedures, and rules. A legal tradition is a set if
deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the
society and the polity, about the proper organization and operation of a legal system, and about the
way law is or should be made, applied, studied, perfected, and taught. . (Henry. J. second ed.)
According to Henry. J. in a world organized into sovereign states and organizations of states, there are
as many legal systems as there are such states and organizations.
Each country in the world has its own legislation system, but all these systems can be divided into
three groups which are common law, civil law and religious law.

Difference between common and civil law.

Common law and Civil law are two the most popular/prominent legal systems in the world. The

common law is the body of law that develops over time through the decisions of judges deciding
outcomes on a case by case basis, rather than from statutes or constitutions. In this system, past
cases and their decisions are relied on to determine what the outcome ought to be in a current case.
This application of past decisions to current cases is called precedent. However, the continental law is
a legal system inspired by Roman law, the primary feature of which is that laws are written into a
collection, codified, and not determined, as in common law, by judges.
In addition to previous evidence there are some difference in sources of continental and common law.
According to Slapper. G. (2001) the usual distinction to be made between the two systems is that the
former, common law system, tends to be case centred and hence judge centred, allowing scope for a
discretionary, ad hoc, pragmatic approach to the particular problems that appear before the courts;
whereas the latter, civil law systems, tends to be a codified body of general abstract principles which
control exercise of judicial discretion. In other words, we can say that common law created by judges
on a case by case basis. In order to solve one particular situation they need to take into consideration
previous cases with the similar approach or create new law in order to make a decision. As regards civil
law, it is a written body of rules which can be applied for any cases.
History
Judges

Substantive and procedural law

Substantive law is the par of the law that creates, defines, and regulates the rights, duties and power of
parties. The rules that prescribed the steps for having a right or duty judicially enforced, as opposed to
the law that defines the specific rights or duties themselves. In other words, by making it more easy to
understand substantive law is the law which shows the, for example, the rights of a person, his duties
and etc. Namely, that person has rights to work and make profit form his work. If during the work he
does not pay the taxes, it is considered to be breaking the law and the starting of procedural law.

Civil and criminal procedure.

If a civil law is the heart of the substantive law in civil law tradition then civil procedure is the heart of
procedural law .
The main difference between civil and criminal procedures is that in criminal procedure actions are
taken by the Government / State whereas, in civil matters, the controversy is between two or more
people/organization. The second thing which can help us to differentiate criminal procedure from civil
one is that criminal matter can result a sentence as fine, probation or time in jail, however in civil cases
most often, the result is an award of money to be paid by one party to the other.

Civil procedure in civil and common law legal systems

There are some differences of civil procedure in these two legal systems. For instance, there are three
stages in civil law legal system, which are preliminary stage, evidence taking stage and decision
making stage. Preliminary stage is considered to be the first step and where are pleadings are
submitted and judge who controls the whole process is appointed (usually they are called instructing
judges or hearing judge). The second stage is taking the evidence and preparation of a summary in a
way of a written record by hearing judge. The last stage in which the judges who will decide the case
consider the record transmitted to them by the hearing judge, receive counsels briefs, hear their
arguments, and render decisions. However, in the common law legal system as compared to civil law
this particular procedure takes less time because almost everything are solved in the trial. In addition
to it the famous pattern of immediate, oral, quick examination and cross-examination of witnesses in a
common law trial is not present in the civil law proceeding.

In common law countries think of a trial as an event during which witnesses are sworn and orally
examined and cross-examined in the presence of the judge and jury. Other things like motions and
objections are often made orally by counsel, and the judge rules orally on them. In the civil law, on the
contrary even the questions asked a witness during the civil proceeding are often asked by the judge
on the basis of questions submitted in writing by counsel by parties. This means that the civil law judge
determines what questions to ask and, unlike the common law judge, in effect determines the scope
and extent of the inquiry.
The second main difference is that civil law legal system the process is inquisitorial and common is
adversarial one. It means that judge in the continental legal system is more active than their colleague
in common legal system.
The classical civil procedure in a civil law legal system is actually an order of isolated meetings of and
written communications between counsel and the judge, in which evidence is introduced, testimony is
given, procedural motions and rulings are made, and etc.
In similar cases in civil law jurisdiction, a public prosecutor or similar official is required by law to
participate in the proceeding as representative of the public interest. But these are exceptional
occurrences, and in the grate mass of civil litigation in both traditions the rule is that the parties have
considerable power to determine what will take place in proceedings. Where the civil law judge puts
questions to the witness, he does so at the request of counsel, and he ordinarily limits his questions to
those submitted by the lawyers.
Other factors explain the considerable dissimilarity in the law of evidence between the civil law and the
common law tradition. According to Henry. H., (1985) one of the most important of these factors is the
existence of the jury. In the common law jurisdiction during civil action a diversity of exclusionary rules,
rules determining the admissibility or inadmissibility of offered facts, have as their main historical
explanation the desire to prevent the jury from being misled by untrustworthy information. An alternative
policy which provided that the common law jury was warned of the unreliability of the evidence but then
allowed to evaluate it on the basis of the warning, has uniformly been rejected. Namely, one of the
obvious rules is the hearsay rule. Whether a witness states that he overheard a conversation and is
asked what he heard. The instant reaction in a trial at common law will be: Objection, your honor,
hearsay. There is possibility that the witness may not give evidence about what someone else said.
That person should be brought before the court to testify in person, where his statements may be
subjected to cross-examination, his demeanor observed by the jury and etc. There are no such rules in
continental law jurisdiction because of the absence of a jury in civil procedures. Nevertheless, it does
not mean that evidence can be easily introduced without restriction during the civil procedure in the civil
legal system.
There is difference even in paying fees for instance, in the USA, whether someone sues another one,
he usually has to pay his own lawyer, regardless the outcomes of the suit. However, in continental legal
system, as in England, the person who loses the case usually compensates the winners advocate
fees.

Criminal procedure in civil and common law legal system.

There are some dissimilarities during the criminal proceedings in these legal systems. One of them is
that in the common law criminal procedure is accusatorial rather than inquisitorial.
The case against an accused is investigated, prepared, and directed through the courts, usually by a
public official representing the state rather than by a judge or magistrate, as in a civil law system. As
issues have become more complex over the decades, common law judges have tended to leave
questioning to the advocates, sitting more as silent umpires than an inquiring third party. The decision
to prosecute is not reserved by the state; in most systems anyone, not only public prosecutors or other
officials, or even those with an interest in the matter, may act as a prosecutor. Private prosecution is

used rarely, however. It nevertheless illustrates the conceptual aspect of the common law criminal
process, that a citizen, either public or private, must commence and pursue the action, and that the role
played by the person or group that determines guilt or innocence is only a minor part in the preparation
and presentation of the suit.
One significant difference between the two traditions is the earlier movement toward/on the way to
reform of penology in the civil law legal system.
The classical criminal procedure in the civil law can be considered that it is divided into three main
stages: the investigative stage, examining stage, and the trial ones. The contrast of two legal systems
is that accused person in civil legal system has the right to ask a help from investigating authority to
collect evidences for his protection during investigatory stage.
Whereas, in common law legal system is it accepted that accused should do it himself.
The second stage is primarily written and is not public. The judge who is examining controls the nature
and scope of this phase of the procedure. Whether, examining judge concludes that crime was
committed and that the accused is the person responsible for the crime the case goes to trial. If he
decides that no crime was committed or that the crime was not committed by the accused, the case
does not go to trial. Furthermore, one of most striking feature of the civil law legal system is guilty
plea which is an essential component of the plea-bargaining system. In civil law legal system a trial
cannot be finished/averted by a guilty plea. The accused persons confession can be admitted as
evidence, but the trial must continue. Whereas, in common law legal system defendant, who pleads
guilty forgoes a trial. It means that, if even defendant does not know he is not guilty and he pleads
guilty, there are some probabilities that a trial will found out the truth and prove the innocence of
accused person.
Additionally, an eminent comparative lawyer has characterized the common law legal system as one
that puts the defendant to a cruel choice between testifying under oath, subject to cross-examination,
and not testifying at all. It was suggested that the civil law, by not subjecting the accused to so drastic a
choice, is more humanitarian/human.

In the end, a statement made by an eminent comparative scholar after

long and careful study is instructive: he said that if he were innocent, he
would prefer to be tried by a civil law court, but that if he were guilty, he
would prefer to be tried by a common law court. This is, in effect, a
judgment that criminal procedures in the civil law world are more likely to
distinguish accurately between the guilty and the innocent.
Conclusion
According to the analysis conducted above it is possible to say that there is no ideal legal system which
can be applied to every case. Since, people live in different geographical locations which means that
their perception and understanding of a particular case would be considerably various. However, it
does not mean that we should reject alien legal systems, since all of them have their advantages and
disadvantages and all of them useful in their area. Nevertheless, in order to avoid collusion of the laws
on international level, convergence theory appears to be one of the most applicable solutions.
Convergence theory
Even though Case Law is traditionally a distinguishing characteristic of a Common law System,
nowadays it plays an enormous role in operation of civil law system as well because of the necessity to
interpret and apply the written law.

On the other hand the common law system over the course of the twentieth century have been
enacting statutory legislation. This leads us to think that there is a tendency of harmonization of legal
rules across the globe. This process was described as convergence of the legal systems. However,
although convergence in certain areas is possible, the deep seated differences in ideology, social and
economic policies, political attitudes, attitudes to law, moral values and philosophies and other factors
would not let the full harmonization possible until they would be reconciled with other.