Reading: Key Differences: Civil law = Inquisitorial System Common law= Adversarial System DEFINING TERMS:

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1 Reading: pages in An Introduction to Law. A Brief Comparison DEFINING TERMS: Civil law Can mean Legal system based on Roman law (like in Turkey) A particular branch of law (Medeni Hukuku) in that system The law of civil or private rights, as opposed to criminal law or administrative law(in the common law system) Common law Can mean Legal system based on English customary law Unwritten, judge-made law (within that system.) Key Differences: Civil law Based on Roman law Law considered a science Comprehensive codes No real equivalent of common law or precedent. No jury, judge decides facts and law. Common law Developed from English traditional law Law is practical, not scientific Written laws don t cover everything Unwritten common law from prior court decisions (precedent) Jury system Civil law = Inquisitorial System Common law= Adversarial System Inquisitorial system search for the truth by an impartial officer of the state is the best method. It is important that the judicial officer, judge or prosecutor, does not care whether a conviction results or not. Adversarial system The truth comes out when two parties vigorously defend their version of the facts from legally equal positions before a neutral and unprejudiced judge. Parties, rather than state agencies, control the investigation and judges do not participate actively in the search for truth. 1

2 For example: The principle that someone who finds lost property has a claim to it that is superior to the claims of all other persons, except the real owner (or sometimes the owner of the land where it was found) was established by a case. What is precedent and how does it work? In Amory v. Delamirie, 93 Eng. Rep. 664 (K.B. 1722), a chimney sweeper s boy found a jewel and took it to a jeweler. The jeweler offered a price that the boy knew was way too low. When the boy asked for it back, the jeweler refused to return it. The court decided that the boy had title to the jewel, not the goldsmith. That case established a precedent. So, in England after 1722, the law was that if you found something valuable, and someone took it from you, you had the right to get it back. In other words, Armory was the law. The principle of precedent, or stare decisis, combines two propositions: 1. Hierarchy: The lower court must accept the position held on any given issue by its hierarchical superior. In theory, this isn t true in civil law countries, though in practice, lower courts follow the decisions of higher ones. 2. Courts are bound by their own previous decisions. How does this work? Examples: The First Amendment to the US Constitution states: Congress shall make no law... abridging the freedom of speech.... A First Amendment case example: A group of high school students who decided to wear black armbands to protest the Vietnam War. School officials learned of the plan and then adopted a policy prohibiting students from wearing armbands. When several students wore armbands to school anyway, they were suspended. The students sued, claiming that their First Amendment rights had been violated. The Supreme Court agreed. (Tinker, 1969) Imagine that a group of students was suspended for wearing black armbands protesting against the invasion of Iraq in Imagine that they sued What would the result be? 2

3 In civil law countries judicial decisions do not become precedents. In civil law systems, this is considered a violation of the separation of powers between the legislative and judicial branches only the legislature can make laws. When a civil court makes a decision, it might influence future decisions by other courts, but, in theory, courts are all free to make decisions based on their reading of the codes For judges to make laws would be considered undemocratic in modern civil law countries. The Jury The right to be tried by a jury is considered very important in common law countries. It is one of the most important differences between civil and common law systems. However, note that most common law countries today use juries only for criminal trials, (the US is an exception.) In addition, some civil law countries have adopted juries for some kinds of trials, though these are often different in form than common law juries. Note also that even in criminal cases, the jury is a right, not a requirement. A defendant may give up his right to a jury and instead have all matters decided by the judge. Why is the jury important? Since before the American Revolution, English and American juries have deliberated in secret. They go into the room where they discuss the case alone. No judge or lawyer goes with them. When they return their verdict, they do not have to explain why they reached it. In a jury trial, the jury determines the facts. The judge will rule on all questions of law, and will give the jury the law to apply to the facts that they hear from the witnesses. Because a jury deliberates secretly, it may return any decision it wants, even a wrong one. In theory, this gives ordinary citizens a powerful voice in the justice system. 3

4 In Criminal Cases: If the jury decides to convict, the jury does not decide what punishment the defendant will get. (capital cases are a major exception to this rule) After the jury makes its verdict, the judge will determine the punishment. The judge has discretion to decide the punishment within a range of penalties allowed by law. In Civil Cases: Juries not only decide which party is right and which is wrong, they also decide how much damages the parties should receive. After the jury renders its verdict in a civil case, the judge can be asked to set it aside as inconsistent with the law or evidence, or to increase or decrease the money award. The judge usually will disrupt the verdict only if the judge believes that no reasonable jury could have come to the conclusion that it did. Pros and Cons of the Jury System In favor of the jury system: Democratic accountability prevents too much power from being concentrated in hands of government. Prevents public from feeling disconnected from justice system. Judges are part of an educational elite, which colors the way they view the world. Jurors have wider life experiences. Judges are often ideologically authoritarian. Often too close to police/prosecutors. Easier for one person to make a mistake/be influenced by emotions, than to convince a jury of 12 to make a mistake. Against the jury system: Jurors are not lawyers and may find it hard to understand and apply the law to the facts in complex cases. Jurors are more likely to be shocked by certain testimony than professional judges and lawyers. They may be more moved by emotion than professional lawyers and judges. The jury is time-consuming and expensive, and in most cases, unnecessary. The jury system requires complex rules of evidence. Many things can go wrong in a jury trial which require dismissing the jury and starting again. Turkey does not have a jury system. Can you see any kinds of cases in which a jury might be useful in the Turkish legal system? What disadvantages could there be? If you don t support the jury system, are your objections to using it in some trials universal (valid for all legal systems in all countries) or are there some reasons (cultural, differences in the legal system) why you think the jury system would not work here? 4

5 So to sum up, the main Civil vs. Common law differences: Common Law Adversarial procedures. Precedent - cases decided by judges become laws. The jury system. Civil Law Inquisitorial No precedent, because only the legislature can make laws. Traditionally, no jury system. 5