GLOBAL LEGAL Common
Civil
SYSTEMS Adversarial
Inquisitorial
INTRODUCTION
Globalisation is a big issue in modern policy making. The obvious consequence is
that knowledge of the aw of jurisdictions out of one’s home is no longer reserved to
comparative lawyers.
The less obvious consequence is that the role, analysis, legal ethics and many others
are not tenable in their traditional and conventional forms.
COMMON & CIVIL LAW
COMMON LAW SYSTEM*
Process of national unification-unifying force in England (1066)
Used by the U.S., Britain and former colonies
Check on judicial arbitrariness- jury, stare decisis
Unification actors- bench and bar
Local customs (some Roman)
Judicial / bar
Centralized government (royal courts)
Respect for judges
Dichotomies
No public law in England
Common law adapts to changing economy
Basis for future interpretations provided by:
Case Law
Precedent
Judge’s rulings
Basic Principles of Common law
Parallel legal systems
No
Hierarchy Dualistic system
Of
norms
Stare Decises
Democracy Jury
Legitimacy
Of Natural Justice –
Judiciary Due Process
Adversary system
CIVIL LEGAL SYSTEM*
Used in France, Germany, most of Europe, Japan
Heavily codified and lots of regulation
Process of national unification- codes (citizens’) on Continent (1804)
Check on judicial arbitrariness- written legislative law / ancient regime
Unification actors- university-taught writers / professors
Roman-influenced
University-taught, professor-inspired
Formed across continent (ius commune / Latin)
Distrust of judicial power
Dichotomies
Public law vs. private law
Civil law vs. commercial law
Basic Principles of Civil law
Stufenordung
Justice
Hierarchy
Administration
Of
Authority Inquisitory system
Public law immunity
Substantive law
Indepen
dance Access to court
Of
Judiciary?
Justice – Volonté
Générale
DIFFERENCES COMMON AND CIVIL LAW
SYSTEMS
Notion of the State
Civil Law Common Law
• Individualism
• Collective
• Pursuit of
• Big Bang
Happiness
• Leviathan
• Rights
Rights
Classical (common)
• Private Law
• Law is Judge made
& Public Law
Law
Concept of the
Constitution
Civil Law Common Law
• Parliament: Volonté • Judge is also
Générale law-maker
• State as Instrument • State as moderator
to Change society • Constitutions limit
• Constitutions empower Governments
Governments • Law and natural
• Statutory law Justice
Access to Justice against failures of authority
Civil Law Common Law
Administrative act Actions or Failures
Enforceable if n. compl. Prerogative writs
Common law writs
rt!
Complaint
InjunctionCo
ou
fC
Prohibition ntem
o
pt
Habeas Corpus pt
em
Administration of
nt
Mandamus Co
Co
Certiorari ur
t!
o
Complaint
N
Administrat. Law Court Traditional Courts
Limited powers All ordinary powers
TRIAL SYSTEM*
CIVIL LAW COMMON LAW
• One or a panel of judges • Judge and jury
• Judge actively participates • Trial dominated by lawyers
in seeking of evidence with the judge as a referee
• Reliance on statutory law • Reliance on case laws
• Judge uses deductive • Judge uses inductive
reasoning about the facts reasoning about the facts
• Inappropriate for the court • Court may fashion and
to fashion a remedy not set equitable remedy – fair
forth in the Code • Judgement followed by a
• Sentence followed by a sentence.
judgment.
Civil Law Common Law
State - Authority
Substantive Law v. Procedure
Access to Court
Legislature Judge Jury
Politics Precedents
Parties Principles
Justice Adversary System
CASE STUDY
Maneka Gandhi Case – confiscation of passport
ADVERSARIAL &
INQUISITORIAL
SYSTEMS
ADVERSARIAL LEGAL
SYSTEM*
Herein advocates represent their parties’ case before an impartial judge / jury who attempt to determine
the truth and pass a judgment accordingly.
Role of the court is primarily that of an impartial referee between the prosecution and the defense.
The adversarial attorney has situational ethics – his duty is towards his client, not to the society or to
truth.
Herein unless people were caught in the act of committing crimes, they could not be tried until they had
been formally accused by their victim.
Prefers to let the guilty get away rather than punishing the innocent.
Defects in this system specifically relating to the accusations being voluntary led to the emergence of the
adversarial legal system.
Moreover European Convention on Human Rights and Fundamental Freedoms in Art. 6 requires features
like separation between powers of prosecutor and a judge and the defendant having a right to counsel.
INQUISITORIAL LEGAL
SYSTEM*
Primarily used by civil law countries.
Here the court is actively involved in investigating the facts of the case.
Based on the belief that the facts speak for themselves.
Some common law countries like U.S. may use inquisitorial system for summary hearings in the
case of misdemeanours like minor traffic violations.
Some believe that inquisitorial is misleading and hence prefer nonadversarial.
Neither judge nor jury can initiate an inquiry.
This system applies to questions of criminal procedure and not substantive law; that is, it determines
how criminal inquiries and trials are conducted, and not the kind of crimes for which one can be
prosecuted or the sentences that they carry.
Practiced in countries like Germany, Russia, China, Japan.
ADVERSARIAL &
DIFFERENCES INQUISITORIAL LEGAL
SYSTEMS
TRIAL SYSTEM*
ADVERSARIAL INQUISITORIAL
• Accused is not compelled to give • Defendants can be compelled to
evidence so they may not be give a statement which is not
questioned by the lawyer or a judge subject to cross-examination and
unless they choose to do so. not given under oath.
• Accused has a right to counsel. • Accused is not given the legal
• Once an accused pleads guilty, there right to counsel.
is no more controversy and the case • The accused’s confession is
proceeds to sentencing. merely another fact that would be
• No plea bargaining. entered in evidence and doesn’t
remove the prosecution from
presenting a full case.
• Plea bargaining.
RULES OF EVIDENCE*
ADVERSARIAL INQUISOTORIAL
• Principle is to distance the • Judge has the sole powers to steer
investigation and the judge from each the entire investigation and trial
other. according to what he considers
• These function to give a judge limited required evidence.
inquisitorial powers as he might • Can lead to biasness.
exclude evidence that he believes is • Powers of the judge are categorially
not trustworthy or irrelevant. laid down in the Code and he plays a
• Evidence can only be relevant and more active role.
not heresay. • Nature of evidence should be
• Reliance on previously decided cases. relevant.
• Judges free to make decisions on a
case-by-case basis.
Case management*
Adversarial Inquisitorial
• Not effective case management as judges • Case management is effective as the judges
cannot exchange views with the parties sit with the parties and can exchange views
for taking any decision, so no initiative for taking any decision for speedy disposal of
for speedy disposal can be taken. any case.
• Lesser discretion to the judge. • More discretion to the judge.
• Case management depends upon the • Case management depends on the judge and
lawyers of both the parties and they get they fix the terms for the resolution of any
unfeterred opportunity for managing the case.
case as per their wishes.
Professional ethical standards*
Adversarial Inquisitorial
• ‘fearlessly uphold the interests of his • Based on humanity, courtesy,
client without regard to unpleasant independence, moderation, dignity.
consequences either to himself or other • Intended to elucidate the truth.
parties.’ • Lawyers are passive to ensure they
• Intended to produce a winner of case. do not meddle with truth due to
• Lawyers are active in terms of diluting vested interests.
the case.
Adversarial Inquisitoria
Fairness of system based on State’s l
interference
Time saving
Institutionalised court system
Independence of parties
Equality of arms
Moral standards
CASE STUDY*
O.J. Simpsons’s case in U.S
