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.
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