Western Comparisons
The traditional focus between common law culture and civil law culture has been highlighted by court room procedure, whereby the former nurtures an adversarial environment and the latter an inquisitorial one. Indeed no system of court procedure can ever be purely adversarial or purely inquisitorial.
In fact France, which subscribes to a civil legal system, historically gave the judge a passive role and left the parties to engage in an accusatorial manner. Nonetheless the common law culture predominately consists of oral arguments where legal representors steer the case in search of justice and reinforcement of rights.
The use of a Jury in the common law as a judge of fact is unique when compared to civil law systems. The Jury are triers of fact in both civil and criminal cases and this reflects a particular culture of law; namely the direct involvement of society in the legal framework. In France a judge’s role as trier of law and fact is merely as an administrator without creating binding legal principle. Hence the civil law culture is more rational, orderly, authoritative and paternalistic.
Common law has a culture of judicial inventiveness and even flexibility. Enunciation of principle is not forever paramount but indeed a continuing flow of cases and statutes add to the ebb and flow of the law, whereby ‘case law represented the modern man’s realisation of his own limitations.’ Further differences include where a civilian lawyer speaks in terms of the law of nature while the common lawyer speaks to reason. It follows that the culture of these legal systems has been moulded by perceptions of justice and the means available to attain it.
Read more about this topic: Legal Culture
Famous quotes containing the words western and/or comparisons:
“For twenty-five centuries, Western knowledge has tried to look upon the world. It has failed to understand that the world is not for the beholding. It is for hearing. It is not legible, but audible. Our science has always desired to monitor, measure, abstract, and castrate meaning, forgetting that life is full of noise and that death alone is silent: work noise, noise of man, and noise of beast. Noise bought, sold, or prohibited. Nothing essential happens in the absence of noise.”
—Jacques Attali (b. 1943)
“I don’t like comparisons with football. Baseball is an entirely different game. You can watch a tight, well-played football game, but it isn’t exciting if half the stadium is empty. The violence on the field must bounce off a lot of people. But you can go to a ball park on a quiet Tuesday afternoon with only a few thousand people in the place and thoroughly enjoy a one-sided game. Baseball has an aesthetic, intellectual appeal found in no other team sport.”
—Bowie Kuhn (b. 1926)