Chapter 63a: Legal systems

In this supplement to Chapter 63, we expand on some of the principles of common law as they affect journalists. We also discuss some other legal systems operating around the world.

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As we saw in Chapter 63: Introduction to the law, there are several different types of legal systems operating in countries around the world. The one used by most Commonwealth countries and the United States is based on common law.

The other main legal systems will be discussed later. These are civil law - which we will refer to as the civil code system to avoid confusion with the civil/criminal legal distinction under common law - religious law and totalitarian law. Many countries also have some elements of customary law existing alongside their main legal system.

Although there are differences in the history, development, principles and applications of these different systems, when applied within a nation they may share common features.

- Common law

This system developed from a set of traditional laws first brought together in England around the 12th Century. The name derives from the fact that it was one set of laws "common" to the whole kingdom, rather than different sets of laws used by individual communities or tribes.

One of the distinguishing features of common law is that it developed through usage rather than being imposed by codified legislation as with the civil code system. (Legislation means laws - sometimes also called statutes - that are made by a representative body such as a parliament. Codification is when individual laws of a similar nature are bundled together under one new, overarching law.)

Common law developed based on the outcomes of individual court cases. Each court case provided a basis for judging the next case of a similar nature. Over the centuries and many thousands of court cases, this process led to a body of laws covering most aspects of society and based on principles shared by the society in general.

There are several core principles which guide common law, though they are not necessarily unique to it. These include:

The rights of the individual exist alongside those of the state;

It is adversarial;

It has a presumption of innocence;

It develops case law through judgments and precedents;

Case law co-exists with statute law and - in most cases - a constitution;

Crimes are punished and civil wrongs are rectified by compensation.

We will now look at each of these in order, then see how other legal systems work.

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1. Based on the rights of the individual

Common law derived originally as a way of determining individual rights - especially property rights - and balancing them against the best interests of society. In medieval England where common law first developed, kings could decide what they wanted and order people to obey. For centuries to come they continued to do this, albeit with diminishing authority. The common laws which were developed and applied by succeeding judgments were meant to regulate the lives of individuals living in society rather than impose laws from above. Commentators contrast this to civil code systems in which the best interests of society itself - made up of individual citizens - is of paramount importance in deciding laws and imposing rules of good behaviour on individuals.

Proponents of common law say it also builds laws from the ground upwards - from the "grassroots" - case-by-case, rather than imposing them from the top, even by parliaments which are meant to represent the people. Common law is therefore said to be more responsive to individual needs and circumstances.

It is interesting to note that the founding fathers of the United States of America continued the colonial common law tradition when they gained independence from the British. They then underpinned it with a Constitution which emphasised the rights of individual citizens. By contrast, a few years later Napoleon imposed a codified system of laws to bring order out of the chaos of post-revolutionary France. Both systems work in their own environments and now are thought to reflect something of the national character of each country.

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2. Adversarial

Common law systems rely on adversarial justice. This means the two sides in a case have the chance to present their arguments equally before a neutral umpire for a decision. Depending on the court, these neutral umpires can be judges, juries, magistrates or chairs of tribunals - some cases combinations of these. The judge - or jury - is expected to hear all the evidence presented by each side, together with legal arguments, and make a decision on who has the strongest case. In most criminal cases, sentence is passed by a judge, whether or not there is a jury. In civil cases juries can sometimes determine the extent of compensation.

In criminal cases the two adversaries are the prosecution representing the state and the defence representing the accused person. In civil trials, the plaintiff makes a complaint against another person or company called the defendant (or in some cases the respondent). In many common law countries it is considered so important that the adversarial system operates fairly that the judge may appoint a lawyer paid for by the taxpayer to defend someone who cannot afford their own lawyer. This is often called legal aid.

Under the adversarial system, each side is usually allowed to bring witnesses to testify in the court. These witnesses are usually questioned by the lawyer who called them and are then cross-examined by the opposing lawyers. The magistrate or judge makes sure both sides get the chance to present their case fairly.

At the end of the trial or hearing, both sides then summarise their case to the judge or jury. If there is a jury, the judge will then normally present his or her own summary of the case to them before sending them into a private room to discuss the case and reach a verdict. If the jury returns a guilty verdict (or a finding for one side in civil cases), they are usually allowed to leave and the judge will then consider the punishment or the size of the compensation, usually called damages. In some countries juries can decide the amount of compensation.

If one side does not like the outcome, they may ask the court for "leave to appeal" to a higher court, where the main points of the case are argued again in front of a new judge or a group of judges sitting as a bench. This adversarial system can go all the way to the highest court in the land if the matter is important enough or involves significant constitutional matters. The highest court's decision is usually final, unless new evidence comes to light in later years which convinces them to re-open the case.

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