6. Punishment and compensation

Punishment and compensation as remedy's to wrongdoing are not unique to common law, though it is useful to understand the principles behind both.

In common law, the concept or compensation is normally applied in the civil rather than the criminal sector, where the state prosecutes and the courts impose punishments for an offence against the state itself.

In civil courts, the principle is that a victim of a wrong by another person (or group such as a company) should be compensated for that wrong, usually with money, known as damages, but also by a court order to do something to put matters right, such as rehabilitate land which has been damaged. Common law says that compensation should be sufficient to return the victim to the state they were in before the wrongdoing took place. Of course, in a civil action where someone has lost a limb, no amount of damages will ever replace a real limb. But the courts will set an amount so the victim should have no further ill effects from the harm they were done by the perpetrator - the one who is ordered to pay.

Sometimes, the concepts or punishment and compensation can be applied in the same case. For example, when awarding damages for defamation a judge may award compensatory damages to restore the victim to their former state (or as near to their former activity as they can get), but they may also award punitive damages against the defendant. This is meant to both punish the wrongdoer but also send a signal to deter other people from doing similar wrongs. These are also called exemplary damages, to set an example.

In common law, judges decide the extent of punishment and compensation by considering numerous factors including the circumstances of the wrongdoing, the extent of the harm and the condition of the victim - sometimes even the remorse or otherwise of the wrongdoer. They also look at what other judges have awarded for similar cases in the past. Increasingly the levels of punishment and limits of compensation are set down in legislation. Politicians like to be seen to be sending a message to the public about how they view crimes and some civil harms, so passing laws with stiffer or more lenient consequences achieves this. Thus the maximum jail for armed robbery may be 20 years, but within this judges have the discretion to sentence people to less if the circumstances warrant it.

The only way a judge can send a person to prison for longer than the statutory maximum is if the person is found guilty of more than one offence, in which case a judge may order the sentences be served consecutively, i.e. one to begin after the other is finished. Normally, however, judges sentence people for multiple offences to be served concurrently, that is all starting at the same time. This means the convicted person goes to prison for the duration of the longest sentence.

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Other legal systems

As mentioned at the beginning of this chapter, there are other legal systems apart from common law. While common law is most usual in English-speaking countries and members of the Commonwealth, these other systems might also apply in certain areas. Some countries have legal systems which are mixtures of common law and other forms of law.

Civil code systems

This is the most common type of legal system in the world, either in its pure form or as a basis upon which other elements such as religious law are added.

The civil code or civil law system is also called by other names such as Roman law, Continental law or Napoleonic law. All are systems where laws are legislated by parliament or some other form of representative government and codified (i.e. brought together). They are distinguished from common law mainly because they come from parliaments, not from court cases. Indeed, in civil code systems the courts do not usually have as much freedom to interpret laws. In the original Napoleonic courts judges were specifically banned from interpreting statute laws.

The underlying principle of civil code systems is that the laws applied to citizens are made by citizens through their political representatives. Judges are there to administer laws, not make them.

Laws are codified, which means laws of a similar nature are bundled together to create a rational system across the whole area. Advanced societies try to ensure that all laws have consistent principles and interact with each other in a logical way without conflict between laws. In complex societies codified laws are vast and detailed. Critics say this means they are hard to change but proponents argue they give certainty and predictability.

Civil code systems are mainly inquisitorial rather than adversarial. That means courts are there to track down the truth, not to be a forum where two sides battle to demonstrate to a judge or jury who is right and who is wrong. Judges in civil code trials are usually more active in questioning witnesses, challenging evidence and even - in some cases - directing investigations. This is quite different to common law trials where the judge is supposed to be impartial.

Although the presumption of innocence is not usually stated explicitly in civil code laws, many countries have subsequently built it into their systems by adopting external or international obligations. For example, most European countries have ratified the European Convention on Human Rights which guarantees the right to a fair trial and the presumption of innocence. Thus these principles have become part of their national laws.

Trial by jury is less common in inquisitorial systems, especially when judges have a strong role in hunting down the "truth' in a case rather than arbitrating between two adversarial parties. The common law developed to give accused people the option of trial by their "peers", meaning people from society in general rather than from the country's rulers. Juries are, however, used in some civil code countries such as France, Norway, Spain and Brazil, albeit usually for a limited range of offences, mainly criminal.

However, even in some common law countries trial by jury is either unusual or unused, especially in societies where tribal or clan loyalties might make it difficult to find people unaligned to either party (i.e. the accused or their alleged victim) to make the objective judgment so important to the jury system. Papua New Guinea's Constitution provides for trial by jury but they are not used. They were abolished in India in 1959 after a particularly contentious case.

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Religious law

Here we are not talking of laws governing the religious practices of believers but of a country's legal system being based on religious laws which apply to people as citizens in both their private and public lives.

Although throughout history many countries have had legal systems based wholly or partly on religious laws and teachings, today by far the most common are those aligned to Islam.

The University of Ottawa's Faculty of Law website lists 36 countries with legal systems based wholly or partly on religious law. These range from countries such as The Maldives where the legal system is almost exclusively Islamic to Singapore and India where religious law plays only a small part in the overall legal system.

Islamic law (Sharia) is based on the Koran and Sunnah holy books, supplemented by interpretations over the centuries by Muslim scholars and jurists. It provides rules on how practising Muslim should live their lives. Like common law and civil code law, Islamic law is still evolving and there are still disagreements about exactly what makes up Sharia and its scholarly interpretations (Fiqh).

Islamic law shares some similarities with common law, principally the fact that it has evolved through application, with current judgments based on precedents and the analysis of previous cases of a similar nature. There are, however, some fundamental differences in areas such as individual rights and equality before the law, especially in the treatment of women.

Although some Islamic scholars disagree, judges in Islamic law are given freedom within Sharia and Fiqh to analyse precedents (case law) and contemporary circumstances to provide judgments suitable to the present day. In some countries, however, judges are encouraged or even required to make very literal applications of the laws, with little room for contemporary interpretation. For example, there is still ongoing debate between fundamentalists and modernists in Islam about the correctness of severing limbs for crimes.

Many countries where Islamic law forms part of their legal system also utilise elements of civil code law. This is especially true of countries which have gained independence from colonial powers which themselves relied on civil code law. This cross-influencing shows itself in either the adaptation of one system by the other or more commonly by the way in which new laws are devised specifying how the two systems can work together. Indonesia is a good example of how the latter can be applied. In many countries, civil code laws apply to certain aspects of public life while Islamic law applies to other aspects, usually more personal matters such as family law. In many countries two separate court systems are maintained to deal with these differences.

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Totalitarian law

Through modern democratic eyes, totalitarian legal systems - whether hardline communist states, feudal autocracies, personal dictatorships or absolute monarchies - are not so much separate systems of law as the arbitrary application of some elements of the other three systems and the rejection of some basic principles of human rights.

Probably the most common system of totalitarian law is socialist law, though this is currently on the wane throughout the world. Even in its most virulent days, socialist law was arguably little more than an amalgam of civil codes law overlaid on Marxist-Leninist theory. It differed from traditional civil code legal systems in areas such as the rights of the individual, property law or unbiased court processes.

One cannot, however, dismiss socialist and other totalitarian states as being merely misapplied civil code law. The fact that their laws lacked provision for the individual to challenge the state meant they could never evolve. The great strengths of common law and civil code law - and some modern brands of Islamic law - are that they change through application and correction at the hands of the people themselves - individuals involved in court cases in common law and through the democratic process of legislation in the case of civil code law.

It is fruitless in a discussion such as this to single out corrupted legal systems from those which simply do not work well. Not only are there significant differences in emphasis between common law, civil code law and religious law systems and vast disparities in their application around the world, but measures such as human rights, crime rates or the severity of sentences are open to subjective interpretation depending on one's views on individual rights compared with the obligations of citizenship.

Modern China, for example, is evolving from a socialist law system to a more mainstream civil code law system, though is still a considerable way short of countries such as France in applying principles such as equality before the law or freedom of speech.

There are, however, dictatorships such as Burma or North Korea in which is is difficult to distinguish any consistent system of laws and their application beyond the personal whim of those in power.

For more information on which systems are used in different countries, there are a number of good reference sites:

World Legal Systems at the University of Ottawa presents the information in several ways, including a world chart, a table of the 192 member states of the United Nations and a chart comparing numerically how the different systems are used globally.

Legal Systems of the World at Wikipedia gives useful explanations of the different systems and a country-by-country description of which systems are used, including mixed systems.

The CIA World Factbook Field Listing of Legal Systems gives a brief description of the legal system or systems used by each country (and some of their overseas territories), as well as whether or not they have accepted the jurisdiction of the International Court of Justice (ICJ).