Civil Law & the Judiciary

Civil Law

• Private law settles disputes between individuals.
• The concept of punishment is not considered.
• The main goal is to compensate the wronged party.
• There is no requirement to prove guilt, instead it's decided by "balance of probability".
• Compensation can be paid if there is a liability.
• The case can be bought in court.
• Plaintiff and defendant are the parties involved, the Civil Law judges decide the judgment.
• Damages or equitable remedy can be awarded based on appropriateness.

The Judiciary in Civil Law Systems

• Civil law judges are qualified professionals who apply and enforce the law in criminal and non-criminal cases, the use of a jury is unusual.
• The judge applies the law as "la bouche de la loi" (the mouthpiece of the law) and does not originate it.
• Judges do not reinterpret the law, they apply it as intended, considering the purpose and social context for which it was created.
• The judiciary is empowered to exercise judicial review over public actions and invalidate improper actions and decisions.
• The judiciary can adjudicate the constitutional validity of new laws in some civil states.

Elements of civil law contraints

• Over time historic codes are modified and new laws are developed.
• Modern civil law countries contain laws in the following:
• Treaties (e.g. the Treaty of Versailles (1919))
• Conventions (e.g. the Geneva Conventions)
• National and regional constitutions
• EU law (amongst member states)
• Domestic statute and statutory codes, and administrative regulations created by the legislature

Criminal Law

• Public law is involved.
• The law is broken by a criminal.
• A wrong is done to society.
• If found guilty, individual will be punished.
• Punishments can be community service, fine, imprisonment.
• A prosecutor and accused/defendant are the parties involved.
• In court, a lot of evidence is needed, proof should be "beyond doubt"
• It is for the police to decide if prosecution is needed.
• A decision is reviewed by the crown prosecution service.

Common Law

• Development started in 1906
• For 200 years law was commissioned as common law.
• In civil law systems one refers to the appropriate code. In a common law system one refers to legislation made by parliament and judicial statements.
• Judges appointed by the Crown in England in late mediaeval times, traveled to hear cases and apply fundamental principles of law, developing a consistent "common law."
• Transferred to Britain's partners. This law is also know as case law.
• Common law is judge-made while statute law is produced by Parliament.
• It is recorded in law reports

Important point of Common Law

• Decisions rests on the principle of ratio decidendi, meaning "Reason for the decision"
• This sets a precedent for future similar situations.
• Common law governs the basic principles of business law, with an emphasis on contract/obligations law.
• The concept of damages is a common law feature.
• Augmented and modified by "equitable" principles of fairness and good conscience
• Judges will follow principles set out by judges of equal or higher rank in earlier cases. This is called the "doctrine of precedent".
• "obiter dicta" are statements that go beyond the ratio – , they are not binding in future decisions but can be referred to as persuasive authority.

Statutes

• Statutes may contain a preamble to explain purpose
• Statutes often contain interpreation provisions, defining words and phrases
• A series of conventions allow the judiciary to interprete statutes when they are not clearly defined.
• Words should be given their literal meaning unless it causes absurdity.
• Interpreted contextually, so interpreted purposively according to the purpose of the statute, and to not extend a statute beyond its intended coverage.
• Modern countries give the judiciary power to strike down actions by the government based on judicial review.

Exceptions to precedents

• A precedent isn't binding if it was wrong per incuriam
• A precedent won't apply if the facts of a case differ significantly
• A decision by a lower court may be subsequently overruled by a higher case, but the earlier judgment may not change
• A higher court may overturn a decision of a lower court

Sharia Law

• It is the law of the Islamic religion.
• Islam is a monotheistic religion like Judaism and Christianity.
• There are two broad schools of thought known as Sunni and Shi'ite Muslims.
• The two branches use different approaches to juridical thought known as Fiqh.
• Those trained in Fiqh are known as Fuqaha
• There is guidance based on the Qur'an which contains guidance and direction for mankind as revealed by Allah to the Prophet
• the prophet's sayings, statements, deeds, known as Ahadith are known as Sunnah
• There are processes known as Itjihad for interpreting and applying the law.
• Ijma: the unanimous agreement of the jurists of a particular age on a specific issue
• Qiyas: "reasoning by analogy"
• Aql: deducing the law by intellect or logic, a mechanism preferred by Shi'ite schools.
• It addresses all aspects of life, personal, business and public.
• Islamic judges are clerical scholars schooled in Islamic jurisprudence (Fiqh)
• Islamic judges must be males of the Islamic faith, of full age and understanding, independent of outside influence and upright character.
• There is no trial by jury
• The judges are assisted by an advisory council of scholars and eminent people, whom the judge appoints.

International Law

• The system of agreed principles, values, standards and mechanisms that regulate dealings between nations, and between people and businesses in different nations.
• There are two parts; Private international law, and Public international law.
• Private international law describes the internal mechanisms for dealing with international contracts, in different countries.
• Public international law governs the relationship between states and international organizations.
• There is no international legislature
• International law is based on agreement across states
• There is no court by which to force appearance
• Several international bodies contribute to the formulation and application of international law and cross-border trade regulation such as:
• the European Union (EU)
• the Eurasian Economic Community
• the Organization of Petroleum Exporting Countries (OPEC)
• Mercosur - the Southern Common Market of South American countries

Civil Courts Hierarchy in England

• The Supreme Court sits at the top with the ability to hear cases from all other courts
• Appeals are made to the Court of Appeal from the High court, country Court and Crown Court
• The High court hears cases from the County court, Crown court and Employment Tribunals
• The employment tribunal has its own employment appeals tribunal

Employment Tribunals

• These hear complaints about unfair dismissal
• They also hear equal pay disputes
• Claims relating to discrimination at work are heard related to sex, race, disability and age
• Health and safety issues
• Disputes over trade union membership

Constitutional Reform Act 2005

• The system was changed by the Constitutional Reform Act 2005
• It transferred the Appellate Jurisdiction of the House of Lords to a new Supreme Court
• The Supreme Court consisted of 12 Supreme Court Justices
• A President and Deputy President led the changes
• A reason for the act was too make a clear division between legislative and judicial authority
• The method of appointing judges tot he court of appeals changed, this power has shifted to a judicial appointments commission

Precedent

• When a case is heard in court a case law is applied
• if there is no statue law that applies
• if the statue law needs interperting

Persuasive Precedent

• Persuasive precedent is a precedent that is not binding but may nevertheless be applied
• There are a series of possible sources of precedent
• Obiter dicta
• A lower court precedent where correct legal principles and reasoning are used
• A previous horizontal court decision
• A previous decision in a foreign court

Binding precedents can be changed by

• Reversing the decision of a lower court
• Overruling a precedent
• Making a distinction between cases

Statute Law in England

• Primary legislation (Acts of parlament)
• Houses debate and vote on statutes
• Delegrated Legislation
• Delegrated Legislation is used extensively to introduce new statue law
• It is made by someone or a body parlament has requested to make it