What are the main differences between common law and civil law

We can see we have plenty of different systems in the world. The mot common is civil law, liken France. Many systems are a mix of systems like China, because of colonization.

Main differences

Civil law

• Based on codes, called « statues » that are written documents. These laws are voted in Congress, and we can call it « written laws »
• In a trial, we have an inquisitorial system
• This wittren law is present in Europe, Asia, South America and Africa.
• Based on Roman law

Common law

• largely uncodified ex: USA, americans hate to have too many statues and rather have like more flexibility. Opposite of French system
• this is an adversary system
• Based on precedents. As we dont gave codes, how do you decide ? You’re supposed to know the precedents on a topic
• Judges are often elected by the citizens (direct democracy, but very political cause you have to please the electors)

Exemple: California was Mexican before being American. So, no surprise that legal documents in California are statue, although it’s still is a common law system.

Where is common law used ?

We use it in England, Wales, Northern Ireland, but not Scotland (cause different history) and in Eire.

You also have common law in « commonwealth countries » like British colonies (USA, Canada, N-Z, Australia, India, Pakistan, Eastern African countries ex: Kenya). In some states that have been used to be occupied by french, there is a bi-system between civil and common law: Louisiana, Quebec...

- Key Principles of common law -

° First they based decisions on precedents

° Stare decisis: the Court has to follow the reasoning used in prior decisions. Because it would be a mess if they would based their decisions on what they think only. So they need some precedents.

° Of course, if there is no similar prior case, the judge resolves the dispute

° New decisions are used as precedent for future cases.

° US Supreme Court : concurring and dissenting opinions (majority decisions). Very rare that Supreme Court does not follow the ruling.

Habeas Corpus (1679)

-> No one can be imprisoned or punished if he has not been judged. If the person is not tried, he must be free.

exception: Bush Guantanamo

- Sources of law in common law in countries-

° Case law: precedents are established by judges

° Statues: written laws passed by the legislature at the state of federal level

Note -> mostly bicameral systems, Most system have two houses

USA: Congress (House of Representatives and Senate)

UK : Parliament (House of Commons and House of Lords)

• Regulations are not laws, the are made up by executive branch (governmental agencies)
• Written Constitution (Supreme Court): State and federal Constitution in the USA.

Supreme Court: in USA, there are 9 justices. Not a odd number cause we can have « dead lock » if we have 8 justices, half of justices can be for a decision, and half for an other. Most of justices come from famous Uni as YALE or HARVARD.

- Role of the lawyer -

As we said, it is an adversary argument

• the prosecution and defense present the case of the judge. They ascertain the facts. Both of these parts are presenting evidence, and also questioning witnesses.

° USA = prosecution / defense attorney

° UK = defense barrister in court, and solicitor making up the work before court. Now the difference is blurred.

° In France, the juge know everything in the case

Here, judge doesn't know anything about the case. The judges choose if they accept an objection or overule (reject) the objection.

There is also a jury because they want direct democracy.

In the verdict, we choose between guilty (conviction) or not guilty (acquittal) in criminal law.

In common law, the Constitution provides the advantage with the 6th amendment saying that everyone, including poor , can be defended by an attorney. 

- Origine of common law -

° Developped after Guillaume le Conquérant, he conquered in 1066 the brittish island. So he ruled theses islands and was also the Duke of Normandy.

° It is called common law, because there were a lot of king’s court in England. So he came with a common document so everyone was under the same rules. Then he spread it in all Britain.

Magna Carta (1215)

Signed by King John facing rebellion of many barons. This king was waging war against France and lost a lot of money because of war. so the barons / nobles in England decided to rebel against the king. They forced the king to negotiate. So these barons made up the Magna Carta, aka « Great Charter of Liberty ». Quite choking at the time because he signed a document saying that even him, would be accountable about theses rules.

The Carta had 63 clauses including the right of « free men » to justice and a « fair trial ». But « free men » and theses clauses only referred to nobles, not poor. Then it became a very important document and symbolic.

When British empire was at its peak, we see on a map, common law has been present in India, Australia...

- The civil branch in the common law-

Civil law v. criminal law

• civil law: governs disputes between private parties / individuals.

Note: Louisiana’s first civil code enacted in 1808, drew heavily from the Code Napoléon and was even written in french. So french influence persists. Louisiana still has notable differences with USA ex: we dont say ‘county’ but ‘paroisses’

• criminal law: deals with cases where someone has violated the law, and committed an offense against the state / society as whole and accordingly is prosecuted by the state. So the offense must not be made against one person, but the whole society to be considered as criminal law.

But sometimes, it’s hard to see the differences between the civil and criminal law.

Note: in different cases, state of California’s popular sovereignty tradition says « the people instead the state... » so we , once again, refer to direct democracy.

Freedom of religion

Freedom of religion is frequently an issue cause has conflict with other freedoms.

1. A Democratic principle : freedom of religion

In France, in 1789, the french Declaration des droits de l’H et du citoyen proteste in the Article 10, everyone’s opinions, including religious ones.

In Universal Declaration oh Human Rights (UDHR), proclaimed in Paris in 10/12/1948 and is offering a common standard of achievement for the peoples and nations. It sets out for the first time, fundamental human rights to be universally protected and is translated in over 500 languages after WW2.

However, there are limits: because this universal declaration is not a treaty, just a declaration, so not legally biding to the countries. But does it mean it does not have sens ? No, because it is the very first human rights decelerated agreed by many countries and led the foundation go the International human rights laws. So very symbolic.

      A lot of article are important (19, 20...) but the 18th is extremely major: Everyone has the right to freedom of thought, conscience and religion;this right includes freedom to change his religion ....cf internet.

But also, we need to respect the people who don’t have any religion so this is really a Occidental point of view to add this option in the article cause in Indonesia, for example, it’s not possible to  not have a religion.

This article says you can practice your religion.But no one must be forced to comply to an association.

European Convention on Human rights

Drafted in 50’s by the Council of Europe. Entered into force in 1953. So idea of human rights apply to everything like torture.

Big difference with UDHR, is that these rights have been established by the European Court of Human Rights in Strasbourg. So it is official and not only a declaration. The Court is made with 47 judges, one for each states. The judgments of these courts are binding on the states: the States need to accept theses human rights.

A crucial article is the 9th: freedom of thought, conscience and religion. (cf internet) but says almost exactly the same of the UDHR.

In the USA Constitution , the human rights are placed in the 1st amendement. The Congress (house of representative + Senate) applies amendements. The idea of this constitionnal declaration is that the government (legislative) is not supposed to prohibit religion, you can have any creed, but he is not supposed to promote any religion neither. They are supposed to stay neutral (in fact this is not really what happens).

Freedom of religion is part of the 1st amendement with (cf photo) and sometimes, those differents freedoms are clashing.

1. Freedom of religion as separation between church and state

Laicité= there is not a good traduction for that. But we can say: secularism, nonsectarian, religious neutrality...

In France, it was stablished in 1905 ‘loi sur la séparation de l’Eglise et del’Etat ».

In the USA, they can not shut down any religion but prohibits the establishment of religion by Congress. In the 6th article of Constitution « no religious test shall ever be required as a qualification to any office or public trust under the US », we are supposed to be religion blind.

New England History

In america, people are very religious. It comes from the story of New England as the first colonies.

Started with Pennsylvenia. Why is it called like that ? Founded by a man called William Penn , a quaker in 1681. He was very religious, but his religious believes were in conflict with the crown of England. He was emprisonned but the crown was not very rich, that much that the king owed a lot of money to M.Penn. So penn cancelled the king’s debts, and became the administrator of Pennsylvania cause it was a new colony.

He instituted there: peace, equality (even for natives), religious tolerance.

Pennsylvanie was soon flooded with immigrants, actually, these persons were peopling the colony. The immigrants were persecuted religious minorities including Irish, Germans, and Jews but also persecuted Protestants denominations.

However Pennsylvania accepted religious tolerance, we used to burn witches like in Salem. Puritans were not accepted.

Puritans in New World

• opposed to roman catholics
• wanted to purify the Anglican Church . king didn't like that so they had to run away from England
• Founded Plymouth Colony (1620) and the Massachusetts Bay colony (1628).
• The Confessionnal church was state religion
• Mandatory church attendance on sundays (connectivut)
• Protecting society from hersey through corporal punishment and execution
• Persecution of Quakers and Baptits (as protestants)