Comparison Of Civil Law Legal System And Common Law Legal System

Introduction:

The following report outlines the contrast between civil law legal system and common law legal systems. From the research undertaken, the country chosen was The Netherlands. This report outlines and identifies comparisons and contrasts of the Irish legal system and The Netherlands legal system.

Question 1:

i) Comparison of civil law legal system and common law legal system

Civil law and common law systems are the two most prevalent legal systems in the world.

A civil law legal system is described as a body of rules that delineate private rights and remedies, and govern disputes between individuals, in areas such as contracts, property and family law, distinct from criminal or public law. (TheFreeDictionary.com, 2019)

Common law, also known as case law, is practiced in many parts of the world including Australia, Canada and the U.K. For the most part, the English-speaking world operates under common law. It is based on the concept of Judicial precedent and to aid the decision-making process in unusual cases, where the outcome can not be determined by pre-existing, written rules of law. (Troy S., 2019)

ii) History of common law and civil law legal systems

The civil law tradition was developed in continental Europe to administer to the large territory over which it exercised authority, including Portugal and Spain. (Diffen.com, 2019) Civil law developed out of the Roman law of Justinian’s Corpus Civilis, whereas common law was developed by custom, ever before any written laws. Common law then continued to be applied to the courts after there were written laws. (ANON, 2017)

The common law system can be traced back to the English Monarchy where it originated in the early Middles Ages. The English Monarchy used to issue formal orders, called “writs” when justice needed to be done; however, writs were not sufficient to cover all situations. Hence, courts of equity were later established in order to hear complaints and arrange punishment based on many sources including “natural law”. These decisions were later published in order for judges to refer back to precedential opinions and apply them to current cases. Just like that, the common law was created. (Piyali S., 2014)

iii) Role of the judge

Judges in civil legal systems are noticeably different from those of common legal systems.

In a civil law legal system judges are often described as “investigators.” These “investigators” generally take the lead in proceedings by bringing charges, establishing facts through witness examination and applying remedies found in legal codes. In contrast to this, common law judges decide matters of law and where a jury is absent they also find facts. Most judges rarely enquire extensively into matters before them, instead, they rely on arguments presented by the part. (Diffen.com, 2019)

In civil law, lawyers have a less central role when representing the interests of their clients. In court presentations and active lawyering are diminished. In contrast, in common legal systems lawyers’ tasks would include advising clients on points of law, and preparing legal pleadings for filing with the court. Lawyers also make presentations to the judge and sometimes the jury and examine witnesses themselves. (Onlinelaw.wustl.edu, 2019)

iv) Role of the jury in civil and common legal systems

A jury plays an important role in the legal system. The jury consists of 12 members of the public with no legal training, who decide, using the facts of the case, if the accused is guilty or not guilty. The judge then determines the appropriate sentence based on the verdict of the jury. One is entitled to be tried by a jury, unless the offence in question is minor. Therefore many civil cases go ahead without a jury. (https://www.fondation-droitcontinental.org/en/2015/03/12/civil-law/ https://www.citizensinformation.ie/en/justice/courtroom/jury.html )

v) Constitution in civil and common legal systems

In a civil legal system, there is generally a written constitution based on specific codes for example civil code, codes covering corporate law, administrative law, tax law and constitutional law. Administrative law is however less codified and administrative court judges tend to behave more like common law judges.

Whereas in a common law legal system there is not always a written constitution or codified laws. (Ppp.worldbank.org, 2019)

Why did our group choose this particular country?

We chose The Netherlands for this assignment because we learned that it is one of the safest countries in Europe with a low crime rate. ( ANON, 2019) According to “Rule of Law Index” in 2016, The Dutch Justice System was ranked as one of the most dependable and adequate in the world. (Wiegerinck, 2016) The Dutch legal system is clear and impartial. (Huissteden, 2015) The government in The Netherlands want to make it facile to resolve cases within the legal system. They also wish to make the procedures for straightforward disputes between members of the public and/or organisations faster and less complex. (ANON, 2019)

How does The Netherlands legal system compare with the Irish legal system?

There are many different types of justice systems to keep and maintain order and peace within their area of jurisdiction creating a social code of conduct, the law. (LawTeacher, 2013) The Netherlands is a constitutional monarchy with a civil law legal system that incorporates French penal theory. In contrast, Ireland has a Common Law legal system similar to that of the United Kingdom, however, Ireland is different to Britain in that it has a written Constitution. Ireland has three main sources of law, which are Constitutional law, Statute law and lastly Common law whereas the Netherlands only have one. (Stephen Walsh & Co, 2019). However, both The Netherlands and Ireland share comparisons. The Netherlands was one of the founding members of the European Economic Community in 1957 along with Belgium, Germany, France, Italy and Luxembourg. Fifteen years later, Ireland, Denmark and the UK joined. (Countries-ofthe-world.com, 2018). Both Ireland and The Netherlands subscribed to the law of the European Union. (Fusion_Admin, 2019)

The Netherlands is divided up into 11 district courts, 4 courts of appeal and 1 supreme court. Every district in the Netherland has limited jurisdiction and they hear many cases about civil cases, rent or work disputes. They also hear cases concerning smaller criminal offenses Whereas Ireland has 23 district courts (Government.nl, 2019).In Ireland for a new law to be passed a draft of the new law is called a Bill. The making of a new law is the task of the Oireachtas. As soon as the Bill is signed by the president it is now an act and can also be added into the Statute Book. The Oireachtas pass about 40 acts every year (Oireachtas.ie, 2019) whereas for a law to be passed in the Netherlands it goes through 7 steps. The first step is the making of the plan, Secondly the drafting of the bill.In tis step the house of representatives receives the bill with documents accompanying it before the minister can pass the bill they must respond to the advice from the council state. Thirdly advice from the council of state is sought. The advice consists of comments and proposals for corrections to the bill, Fourthly it goes through the House of Representatives.Then passage through the senate, the sixth step is assent. A bill becomes an act of parliament and it also becomes ratified by the monarch and lastly Publication on Overheid.(Overheid.nl, 2019)

References:

1. Troy S. (2019) Common Law. Investopedia. Available online at https://www.investopedia.com/terms/c/common-law.asp [Accessed 12 Oct. 2019].
2. ANON. (2017) Civil law (legal system). New World Encyclopedia. Available online at https://www.newworldencyclopedia.org/entry/Civil_law_(legal_system) [Accessed 12 Oct. 2019].
3. Piyali S. (2014) What is the Difference Between Common Law and Civil Law? Washington University in St. Louis. Available online at https://onlinelaw.wustl.edu/blog/common-law-vs-civil-law/ [Accessed 12 Oct. 2019].
4. TheFreeDictionary.com. (2019). civil law. [online] Available at: https://legal-dictionary.thefreedictionary.com/civil+law [Accessed 11 Oct. 2019].
5. Onlinelaw.wustl.edu. (2019). What is the Difference Between Common Law and Civil Law? – Blog | @WashULaw. [online] Available at: https://onlinelaw.wustl.edu/blog/common-law-vs-civil-law/ [Accessed 11 Oct. 2019].
6. Ppp.worldbank.org. (2019). Key Features of Common Law or Civil Law Systems | Public private partnership. [online] Available at: https://ppp.worldbank.org/public-private-partnership/legislation-regulation/framework-assessment/legal-systems/common-vs-civil-law [Accessed 11 Oct. 2019].
7. Diffen.com. (2019). Civil Law vs Common Law – Difference and Comparison | Diffen. [online] Available at: https://www.diffen.com/difference/Civil_Law_vs_Common_Law [Accessed 11 Oct. 2019].
8. ANON. (2019) Crime and the legal system in the Netherlands. [online] Available at: https://www.expatica.com/nl/about/gov-law-admin/crime-and-the-legal-system-in-the-netherlands-104004/ (Accessed on 08 Oct. 2019)
9. Samuel Wiegerinck. (2016). Dutch Justice System Ranks #5 Worldwide. [online] Available at: https://mededinging.co/2016/10/dutch-justice-system-ranks-5-worldwide/ (Accessed on 08 Oct. 2019)
10. Antoni van Huissteden. (2015). Benefits of investing in the Netherlands [online] Available at: https://www.fortadvocaten.nl/en/benefits-of-investing-in-the-netherlands/ (Accessed on 08 Oct. 2019)
11. ANON. (2019). Administration of justice and dispute settlement | The Dutch court system | Simplified procedure for civil disputes [online] Available at: https://www.government.nl/topics/administration-of-justice-and-dispute-settlement/the-dutch-court-system (Accessed on 08 Oct. 2019)
12. LawTeacher. (2013). Compare and Contrast Two Types of Criminal Justice Systems. [online]. Available at: https://www.lawteacher.net/free-law-essays/english-legal-system/compare-and-contrast-two-types-of-criminal-justice-systems-law-essay.php?vref=1 [Accessed 12 October 2019].
13. Countries-ofthe-world.com. (2018). World Countries as Independent States [online]. Available at: https://www.countries-ofthe-world.com/european-union-countries.html (Accessed 12 October 2019)
14. Fusion_Admin. (2019). The Irish Legal System – Explained [online] Available at: https://stephenwalshsolicitors.ie/2017/11/17/irish-legal-system-explained/ (Accessed on 12 October 2019)
15. Stephen Walsh & Co. (2019). The Irish Legal System – Explained – Stephen Walsh & Co. [online] Available at: https://stephenwalshsolicitors.ie/2017/11/17/irish-legal-system-explained/ [Accessed 13 Oct. 2019].
16. Government.nl. (2019). The Dutch court system. [online] Available at: https://www.government.nl/topics/administration-of-justice-and-dispute-settlement/the-dutch-court-system [Accessed 13 Oct. 2019].
17. Oireachtas.ie. (2019). Houses of the Oireachtas – How laws are made. [online] Available at: https://www.oireachtas.ie/en/visit-and-learn/how-parliament-works/how-laws-are-made/ [Accessed 13 Oct. 2019].
18. Overheid.nl. (2019). How an Act becomes law | Overheid.nl. [online] Available at: https://www.overheid.nl/english/about-the-dutch-government/what-government-does/how-an-act-becomes-law [Accessed 13 Oct. 2019].