The Two Faces Of Law

The Two Faces Of Law

by Group 4

   We often watch on TV a variety of programs resembling criminal cases and their legal implications, such as Dick Wolf’s popular Law and Order. But while watching it, some people can’t help thinking about how do they make an interesting show over only courtroom cases. Perhaps, if we, chileans would try to do something similar, it would turn out boring. This may be due to the fact that countries that were former British colonies or protectorates, including the United States, have a different legal system called Common Law, and it is completely different from those countries that were former French, Dutch, German, Spanish or Portuguese colonies or protectorates, including Chile, which have a legal system known as Civil Law.

You may wonder, what are the differences between these two systems?  

The main difference is that  in the Civil Law System is generally a written constitution based on specific codes, and in the Common Law System, there is not always a written constitution or codified laws. This makes the first one more prescriptive than the second one, in other words, everything is written, basic rights and duties, all you can and cannot do. On the other hand, Common Law has basically everything  permitted if it is not expressly prohibited by law, this is what gives people, among other things, extensive freedom of contract, individuals and corporations have the freedom to form contracts with hardly any government restrictions, just few provisions are implied into the contract by law.

It’s also important to take into consideration the role played by the people within the system.  In a Civil Law system, the judge’s role is to establish the facts of the case and make use of the existing laws to solve the case. By contrast, Common Law is based on precedent, the similar cases are essential for this system, the precedents are saved and also historically documented in collections of case law. This variation is what changes the judge’s role, it gives judges a more active role in the cases. Also most common law states involve a jury trial, a legal proceeding in which civil people also take part on serious criminal cases, discussing and judging people for their actions.

The judge determines the sentence based on what the jury decides, that’s why this system may turn the case into a more subjective procedure than most of Civil Law System trials which have no jury, and the lawyers have nobody to impress but the Judge with facts. However, the jury trial gives civilians the chance to participate and take an active role in society, helping to decide what would be the fairest decision in each case.

Therefore, both systems not only are totally different but also have good and bad characteristics. One could look more democratic, more subjective or more fair.

Nonetheless, it is not impossible to combine both of them;  taking the good things from each one to improve it and creating a new one, maybe more fair and complete law system.

Actually, there are few countries, which have pluralistic systems, in other words they have civil and common law aspects, such as Philippines, Swaziland and Thailand.

What do you think about it? Do you prefer your country to have the Common Law System or the Civil Law System? or do you think that some pluralistic system is better? Leave your answers and opinions about these interesting law systems.