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Part II (Extended): Civil Law and Common Law Systems

• Two major legal systems exist globally: civil law and common law
• Civil law systems are most common
• Other systems exist, including customary law, religious law, and special/mixed systems (civil + common, civil + religious, common + religious)

Civil Law vs. Common Law

• Common Law:
  • Based on judicial precedent (past court decisions)
  • Adversarial system (focuses on competing arguments)
  • Not codified (no single, comprehensive code)
  • Judicial precedents are binding (new rulings must follow previous cases)
  • Case law is the primary source
  • Judges moderate between parties involved, making rulings
• Civil Law:
  • Code-based system (a collection of statutes/laws)
  • Inquisitorial system (judge plays a role in finding facts)
  • Codified (single, comprehensive code guides the law)
  • Judicial precedents are not binding (judge not obligated to follow prior cases)
  • Statutes and other regulations are the primary sources
  • The judge's role is to ascertain facts and apply the code

Influence of Law Systems on Lawyers and Judges

• Civil Law Lawyers: Advise clients, prepare pleadings (formal statements), less active in the courtroom
• Common Law Lawyers: Examine witnesses, more prominent roles in trials
• Civil Law Judges: Investigators, take the lead in proceedings, seek facts and truth
• Common Law Judges: Referees, arbitrate arguments, considering legal precedents and equity

Test Yourself #6 - True/False

• In common law systems, judges are considered referees, unlike civil law systems where they are investigators (True)
• In common law, lawyers are more active participants in trials (True)
• Common law is seen as a more flexible system than civil law (True)
• Civil law is the predominant legal system globally (False; this is debatable)
• Common law judges must abide by past judicial decisions from higher courts regarding the application and interpretation of laws (True)
• Common law differs from civil law in that its primary source is codified law (False; its primary source is case law)

Recent News Regarding Civil and Common Law Systems

• Questions regarding the 1973 Roe v. Wade judicial precedent in the U.S.
  • Who issued the decision?
  • What were the consequences?
  • Would a similar result be possible in a civil law country and why or why not?

Part III: What is Conflict Resolution?

• Conflicts/disputes can be resolved in several ways
  • Amicably between parties
  • With help of a third party (mediator/conciliator)
  • Before a judge in a court of law
  • Before an arbitrator in an arbitral tribunal

Amicable Conflict Resolution Without a Third Party

• A transaction usually contains reciprocal compromises
• The compromises are binding on all parties
• The parties cannot seek legal action to change or re-evaluate the agreements reached

Amicable Conflict Resolution With a Third Party: Conciliation and Mediation

• Different systems for different types of conflicts
• Contractual Conciliation: Any conflict between parties, free procedure
• Contractual Mediation: Any conflict; mediator proposes solution, paying procedure
• Consumer Law Mediation: Conflicts between consumer and professional, free procedure, confidential

Test Yourself #7 - True/False

• Mediation is a free process (True)
• Conciliation is more akin to a transaction than mediation (True)
• Consumer law mediation must always be offered to a consumer in conflict with a professional (True)
• A consumer must always go through consumer law mediation in conflict with a professional (True)
• Mediation has a wider field of application than conciliation (True)

Test your knowledge on the distinctions between civil law and common law systems. Explore their characteristics, strengths, and how they function globally. This quiz focuses on the fundamental differences and the various legal systems that coexist.