Today, legal systems worldwide fall under two main categories, namely common law and civil law. About 150 nations have systems that generally follow the former, while about 80 countries use common law.
In common law, case law is most important. Published judicial opinions are the bases for the system. Civil law, on the other hand, is often based on codified statutes. It’s important to note that the differences are not definitive; many countries use a combination of features from both systems.
The common law system traces its history to the monarchy of England. Formal orders in the form of writs are presented during cases. But these weren’t always enough, so the English established courts of equity based on various sources of authority to offer more appropriate remedies and to better listen to complaints. The resulting decisions were then collected and published and would be the bases of ruling in future cases, providing the so-called precedent.
Civil law systems often have sets of laws varying per country and developed over time, but trace their origin to the code of laws created by the Roman Emperor Justinian, around 600 C.E. Here, judges often take the role of investigators who preside over proceedings, examining witnesses and establishing facts, ultimately making judgments based on legal codes. In other words, lawyers have a diminished role in this system, particularly regarding legal representative work like oral arguments, presentation, and active in-court lawyering.
In common law countries like the U.S., lawyers present to the judge and the jury and examine witnesses themselves. They have a significantly more active role in discussing points of law, as well as have the exclusive right to prepare legal documents. The role of the judge in common law is more like that of a mediator or referee.
Atty. Joe Tacopina is the founder and Managing Partner of Tacopina & Seigel. The firm specializes in criminal, civil, and securities litigation. For more on the firm’s services, go to this website.
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