Posted on: November 3, 2020 Posted by: admin Comments: 0

Author : Sanjhi Sharma, Student at O.P Jindal Global University.

INTRODUCTION

The collection of evidence which is an inseparable part of justice in any legal system. This is for the sheer fact that the whole claim of a party is based on such evidence. While there are a few similarities in Civil and Common legal system, there are certain features which distinguished one from the other.

This paper seeks to delve into some of those distinctions and highlight the different facets of evidence collection in these two legal systems. There are quite of few of such differences all of which, for obvious reasons, can’t be looked into. For the purpose of emphasizing the more conceptual difference between common law legal system and civil law legal system, this paper would not delve into the difference between two common law countries (E.g.: India and UK) or two civil law countries (E.g.: France and Germany), but the most commonly accepted principles of common law and civil law counties as a whole. It will be assumed that these principles are more or less common throughout the respective countries in some way or the other.

Conclusively, this paper would seek to examine which elements of common law and civil law legal system could be seen as more sustainable options for meeting the ends of justice and which legal system is a better option, in its current form, under my opinion.

CIVIL LAW LEGAL SYSTEM

It is said that Civil Law countries are generally those who established their legal system by way of the Roman Law under the rule of Roman Emperor Justinian around 600 C.E. [1]

Civil law countries are known for their Inquisitorial System[2]. In Civil Law counties, judges are seen as “investigators”[3]. They take the chief role in the trials by establishing charges, instituting facts by way of witness examination and co-relating remedies found in legal codes[4]. The role of lawyers is limited but they still represent the interest of their client, especially in civil proceedings[5]. Their main job is ordinarily advising the clients of point of law and preparing the pleadings to file before the court. Other tasks such as contract drafting and non-litigation legal tasks are generally left to professionals who assist businesses and individuals, and don’t necessarily have a legal education.[6]

The parliamentary legislations are the main sources of law in the Civil Law system[7]. The codes are comprehensive and are expected to be followed without deviation[8]. The opinions of scholars and customs have been given importance in Civil law[9].

Another aspect of difference is on the structure of courts. Under the Civil law system, there is a distinction between private and public law courts[10]. There are also specified courts for particular matters like administrative courts, criminal courts, constitutional courts, etc.[11] This is for the purpose of benefiting from the specialization and accommodation of local customs.[12]

COMMON LAW LEGAL SYSTEM

Common Law system was established by the English monarchy[13]. They used to issue formal orders known as “writs” when justice was needed[14]. However, writs were not sufficient to cover all situation and consequently, the courts of equity were established to give justice in matters which needed them by applying the remedies based on equitable principles[15]. These equitable principles were taken for diverse sources of authority such as “natural law”[16]. As more and more decisions were given and published, the courts used the past decisions as precedents and applied them to the current case with similar fact pattern[17]. Thus, the common law system developed.

Common Law countries are known for their adversarial system[18].  In Common Law countries, the lawyers have a greater role than in Civil Law countries. They present the case to the judge (or a jury) and examine the witnesses themselves[19]. The judge in a Common Law system has more flexibility as compared to in Civil Law system. They can award a remedy which may or may not confer with the concerned code[20]. The lawyers try to persuade the judge by setting out facts and evidence which lay out their case in the best possible way.[21]

The main sources of law are the judge made laws in the Common Law countries[22]. The precedent system and the rule of stare decisis is followed by the lower courts[23]. The role of scholars is limited to a persuasive value only since judge’s opinion is primal in making and development of the law[24].

The structure of courts in the Common law system is more generalized than in Civil law system. There are more unified courts such as a Supreme Court.[25]

EVIDENCE COLLECTION IN CIVIL AND COMMON LAW SYSTEM

The countries, which follow the common law legal system, have a separate code of evidence or separate rules[26]. These rules determine the admissibility of the evidence.

While, when we come to the law of evidence in the Civil Law legal system, there is no distinct code of evidence law[27]. Rules of evidence are sparsely distributed in both substantive and procedural laws[28]. This is surprising for the fact that the codification of law is more in Civil law legal system than in Common law legal system.

In Civil law countries, where laws have been sculpted by the spirit of Napoleonic codes, the consequence is that the pleadings of the parties are considered with the extreme precaution by the judge[29]. It carries a principle as per which “no one can create proof for him/herself”, because of which it may become difficult for the parties to establish their evidence[30]. Parties are hardly ever listened to because there is a belief that they would always misrepresent the truth[31]. The trial goes on the basis of submissions of the parties, exhibits produced by them and the oral arguments by way of their lawyers[32]. No “cross examination” takes place with the witnesses[33]. The exclusion extends to third parties, like spouse, relatives and other closely related persons of the party since it is not likely to expect a neutral testimony from such persons[34]. Here, a judge has a discretion to determine the admissibility or otherwise of the evidence by applying his own personal evaluation. Thus, in civil law legal system there is no rule which excludes ”hearsay’ evidence[35].

In Common law countries, however, oral hearing is a principle which has always prevailed[36]. Documentary evidence is generally regarded as being inferior to oral evidence[37].The greatest weight and importance is attached to oral testimony of the parties and their respective witnesses[38]. Parties may themselves be heard as witnesses or call on someone else relevant to the case to be presented as witness and cross-examined[39]. The physical presence of the witness affords the judge the opportunity of observing the witness demeanor[40]. This is perceived as being a useful indication of a witness’s truthfulness[41]. But when they say oral evidence, they are saying the direct one. The oral evidence must be direct in common law legal systems[42]. Here, there is a rule, which excluded hearsay evidences[43]. Because, in hearsay evidence there is no test of accuracy which enables the opponent party in discerning or checking whether or not the witness is speaking the truth, like cross- examination and physical presence of the real witness since it is the right of the accused to confront his or her accusers[44].

In Civil law countries, documentary evidence holds the utmost importance[45]. It is required by the party ipso facto to present the documentary evidence in addition to any other evidence[46]. If a party wants to submit an affidavit, they are required to be authored by an independent party who is not connected to the case in any way[47]. This advances the basic principle of Civil law that no one can create evidence for themselves[48]. They believe that, documents do not lie, and they are easily manageable, and economical to bring them before the court of law[49]. However, in case of witness testimony, it is believed in the Civil law legal system that it is based on the recollections of different people who witnessed the events with their own senses and recollection is not always accurate, particularly if the witnessed event was over in a matter of seconds or was committed in circumstances of fear or excitement[50].

A party can request the judge to order the other party to present certain relevant documents, however, this is a highly discretionary power of the judge, and he may or may not permit it[51]. There is, therefore, no “discovery process”.

On the other hand, in Common law countries, a party has the right to request the other to disclose all the relevant documents to the case which are available to it and the other party would be liable to fulfil such request, otherwise a criminal liability may follow[52].

WHICH LEGAL SYSTEM IS BETTER?

When we answer the question as to which legal system is better, what we are really asking is what legal system provides ends of justice in the most efficient and effective way. Choosing one legal system, over the other could also be a matter of choice and considerations which are prioritized by an individual.

I am of the opinion, that a civil law legal system is more efficient and effective in meeting the ends of justice. This is due to the following reasons:

Firstly, the role played by the judge in a civil law legal system is much than in a common law legal system. This is because the judges are seen as “investigators” in Civil law legal system and the cases are actually directed by the judges, with parties advocates as sub-ordinate participants[53].While in common law legal system, a judge is more like a passive moderator or an umpire[54]. This, in my opinion, is more beneficial because the entire process of fact finding, and witness examination is conducted by an unbiased party whose main goal is not to win the case but provide justice. The role of the lawyers in civil law legal system is limited and the case is in the hands of the judge. This prevents lawyers from stretching the case unnecessarily to charge their clients more, thereby making legal aid extremely expensive, which is one of the main reasons why legal aid is expensive in common law countries[55]. With the case being in the hands of the judge, the financial interest of the clients would be secured because the judges have no pecuniary interest in stretching the case. Although, the government may provide for free legal aid but because in common law, it is a battle between the lawyers to win the case and not provide justice, the battle is more often than not won by the better, more expensive lawyer. The possibility of this happening in a civil law legal system seems lesser because the case is in the hands of the judge, with the role of the lawyers being limited.

Secondly, the procedure in common law legal system is extremely expansive and long. Procedural aspects such as adjournments[56] are used by lawyers as delaying tactics in common law legal systems. There is also no particular time bar on the judges, when it comes to criminal cases, to deliver judgements after the hearing is over. This causes indefinite delays in deciding cases and huge number of backlogs. This essentially means that one has to wait years if not decades to get justice[57]. This is not the case in civil law legal system, wherein the pleadings don’t extend to more than a day, thereby cutting the duration of getting justice significantly[58]. The tedious procedure and the amount of time it takes in a common law legal system to get justice has also made the justice system a last resort for the people. The under-privileged sections of the society are hit the worst. They spend almost their entire adult life running to courts for various kinds of disputes[59]. Even the illegal culture of bride isn’t helpful for them because they are not in an economic position to bribe a public servant.

Finally, the personal bias of a judge is more likely to come in a common law legal system than civil law. This is because the common law legal system is more flexible and gives the judge the authority to create precedents which would be binding, whereas under civil law legal system, the judge is required to stick to the statues which the representatives of the people have made. That being said, flexibility is an important factor to keep the legislature in check, but too much of anything is not good. When a judge is asked to only apply the law, there is less scope of personal prejudice coming in and more scope of uniformity. This, essentially, eliminates the fact that the decision of the case would depend on the ideology of the judge, rather than the principles of law.

CONCLUSION

This paper highlighted the key differences in the evidence collection process and the role of judges in civil and common law legal systems. In doing so, the paper also delved into why a civil law legal system is better at meeting the ends of justice, than a common law legal system.

That being said, the argument of civil law legal system is better than common law legal system is based on the personal opinion of the author by analyzing certain factors which she believes are important in a justice system. The critique of the common law legal system is also coming from the first-hand experience of the author as a citizen of a common law country. Surely there are short coming in the civil law legal system, which could be understood better from an ethnographic point of view, however, the opinions expressed here are from prima facie reading and comparison of the civil and common law legal structures.

The paper looks at the three major aspects (role of the judge, length of procedure and personal bias) and other minor aspects such as accessibility of the justice system to come to the conclusion that a civil law legal structure could be more desirable than a common law legal structure.

BIBLIOGRAPHY
  1. Piyali Syam, What is the difference between common law and civil law?, Washington University School of Law (2014).
  2. Kamil Oumer, Key Differences between the Civil and Common Law Legal Systems, Selçuk University (February 25, 2018).
  3. AJGM Sander, The Characteristic Features of the Civil Law, 14(2) The Comparative and International Law Journal of Southern Africa, 196-207 (1981).
  4. Geoffrey C. Hazard & Angelo Dondi, Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits, 39 Cornell Int’l L.J. 70 (2006).
  5. Frederick Schauer, the Idea of the common law, Harvard University Press 103-23 (2009).
  6. Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872, at s. 135.
  7. S. CONST. amend VI, Confrontation Clause.
  8. INDIA CONST. art. 141.
  9. S. CONST. art. III, § 1.
  10. Nicola Gennaioli & Andrei Shleifer, The Evolution of Common Law, 115(1) Journal of Political Economy, 43–68 (2007).
  11. Kahsay Debesu & Andualem Eshetu, Evidence in civil and common law legal systems, Abyssinia Law (Sept. 04, 2012).
  12. Craig P Wagnild, Civil Law Discovery in Japan: A Comparison of Japanese and US Methods of Evidence Collection in Civil Litigation, 3 APLPJ (2002).
  13. Gao Jianxina, Taking of Evidence Abroad and its Comparison between Countries of Civil Law and Common Law, 3(1) Asia Pacific Law Review, 116-123 (1994).
  14. Mirjan R Damaška, The Adversary System, Yale University Press, 74-124 (1997).
  15. Geoffrey C. Hazard, Jr. & Angelo Dondi, Legal Ethics: A Comparative Study 63-108 (Stanford University Press, 2004).
  16. Geoffrey C. Hazard, Jr. & Angelo Dondi, Legal Ethics: A Comparative Study 63-108 (Stanford University Press, 2004).
  17. Andrew Higgins, Legal Aid and Access to Justice in England and India, 26 NLSI Rev. (2014).
  18. Code of Civil Procedure, 1908, No. 05, Acts of Parliament, 1908 (India), O. XVII.
  19. Judiciary and Judicial Procedure, 28 U.S.C. § 140.
  20. Harish Narasappa, The long, expensive road to justice, India Today, April 27, 2016.
FOOTNOTES

[1] Piyali Syam, What is the difference between common law and civil law?, Washington University School of Law (2014).

[2] Kamil Oumer, Key Differences between the Civil and Common Law Legal Systems, Selçuk University (February 25, 2018).

[3] Syam, supra note 1.

[4] Syam, supra note 1.

[5] Syam, supra note 1.

[6] Syam, supra note 1.

[7] AJGM Sander, The Characteristic Features of the Civil Law, 14(2) The Comparative and International Law Journal of Southern Africa, 196-207 (1981).

[8] Id.

[9] Oumer, supra note 2.

[10] Oumer, supra note 2.

[11] Geoffrey C. Hazard & Angelo Dondi, Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits, 39 Cornell Int’l L.J. 70 (2006).

[12] Id.

[13] Frederick Schauer, the Idea of the common law, Harvard University Press 103-23 (2009).

[14] Syam, supra note 1.

[15] Syam, supra note 1.

[16] Syam, supra note 1.

[17] Syam, supra note 1.

[18] Hazard, supra note 11.

[19] Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872, at s. 135; U.S. CONST. amend VI, Confrontation Clause.

[20] INDIA CONST. art. 141; U.S. CONST. art. III, § 1.

[21] Syam, supra note 1.

[22] Nicola Gennaioli & Andrei Shleifer, The Evolution of Common Law, 115(1) Journal of Political Economy, 43–68 (2007).

[23] Supra note 20.

[24] Gennaioli, supra note 22.

[25] Hazard, supra note 11.

[26] Kahsay Debesu & Andualem Eshetu, Evidence in civil and common law legal systems, Abyssinia Law (Sept. 04, 2012).

[27] Id.

[28] Debesu, supra note 26.

[29] Syam, supra note 1.

[30] Oumer, supra note 2.

[31] Oumer, supra note 2.

[32] Hazard, supra note 11.

[33] Hazard, supra note 11.

[34] Debesu, supra note 26.

[35] Debesu, supra note 26.

[36] Hazard, supra note 11.

[37] Debesu, supra note 26.

[38] Debesu, supra note 26.

[39] Hazard, supra note 11.

[40] Debesu, supra note 26.

[41] Craig P Wagnild, Civil Law Discovery in Japan: A Comparison of Japanese and US Methods of Evidence Collection in Civil Litigation, 3 APLPJ (2002).

[42] Id.

[43] Gao Jianxina, Taking of Evidence Abroad and its Comparison between Countries of Civil Law and Common Law, 3(1) Asia Pacific Law Review, 116-123 (1994).

[44] Id.

[45]Mirjan R Damaška, The Adversary System, Yale University Press, 74-124 (1997).

[46] Id.

[47] Damaška, supra note 45.

[48] Damaška, supra note 45.

[49] Wagnild, supra note 41.

[50] Wagnild, supra note 41.

[51] Jianxina, supra note 43.

[52] Jianxina, supra note 43.

[53] Geoffrey C. Hazard, Jr. & Angelo Dondi, Legal Ethics: A Comparative Study 63-108 (Stanford University Press, 2004).

[54] Hazard, supra note 11..

[55] Andrew Higgins, Legal Aid and Access to Justice in England and India, 26 NLSI Rev. (2014).

[56] Code of Civil Procedure, 1908, No. 05, Acts of Parliament, 1908 (India), O. XVII; Judiciary and Judicial Procedure, 28 U.S.C. § 140.

[57] Higgins, supra note 55.

[58] Higgins, supra note 55.

[59] Harish Narasappa, The long, expensive road to justice, India Today, April 27, 2016.

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