Common and Civil Law Are Two Very Different Legal Systems

The common law system and the civil law system are in fact two very different legal systems; they have developed in different geographical areas and have had different starting origins and therefore different history. But as K. Lambert [1] says ‘the application of substantive law to disputes to achieve an equitable resolution for all competing interests is the ultimate goal of any legal system, the rules of process need constitute no more than the means for obtaining this end.’ [2] In our case we might say that the process is indeed very varied when it comes to the preparation and progress to achieve the end Lambert talks about.

Reverting to these differences, during the preparation in the continental system there is no pre-trial phase and thus the evidence is showed for the first time in the hearing which constitutes the trial. The judge is there to decide the case on the evidence presented at that time. While in a common law system there is the pre trial phase. [3] In the continental system the plaintiff’s lawyer is the one who starts the suit by filing a summons in court, counterclaims during the procession relating to the main claim can be submitted through the process. Under the American common law system, the initial burden is on the plaintiff to file suit in court. The plaintiff also has the initial burden of demonstrating he or she has a legitimate claim. Then the preparation of witnesses follows, once it is stated that the common law system provides for a suit without interruptions then it comes natural for the lawyer to prepare all the arguments and evidence needed, and what happens in the American common law system is that attorneys prepare witnesses for interrogation and cross examination. [4] This is unacceptable on the continent, Lambert in commenting on France’s system says, ‘not only would preparation of a witness be a serious breach of ethics but any substantial contact with a witness would typically destroy his or her credibility before the judge’. [5]

With regards to the progress of the civil suit let’s start by saying that the form of the suit varies extensively and that this difference gives rise to consequences. In the common law system there are no interruptions when the case starts it has to continue until a judgement is given that is why there is enormous importance attributed by lawyers. They have to prepare all their arguments beforehand and the carrying out of the suit is in their hands. The judge is merely there to be given a “show” and then he has to come to a decision. The rule in common law countries is that the judges restraint themselves and they do not like to interject. [6] Zweigert & Kotz [7] made reference to various judgements which brought forward the importance of the judges’ silence in the common law civil suit, one of the cases cited by them was Jones vs. National Coal Board, 1957 [8] , as quoted in Zweigert & Kotz, ‘the court of appeal remanded a case for a new trial on the sole ground that the judge at first instance had asked too many questions and made it impossible for the parties to present the evidence in the way they thought best’. On the other hand the continental civil suit is divided into various hearings allowing lawyers to prepare themselves in between for anything that might have happened in the previous sitting. Here the experts are appointed by the court itself to ensure neutrality whilst due to the fact that in the common law countries the case is all in the hands of attorneys then they themselves are the one to bring their own experts. In continental systems the judge is the one carrying out the suit and he is much more active than his common law counterpart. [9]

Another difference in the procession of the suit is the fact that in civil legal system there is no jury but there is use of lay judges who are not appointed according to their impartiality but generally to their area of expertise. One has to note that in civil legal systems many specialized courts are used and that is why the lay judges are chosen according to their expertise. Where no lay judge is made use of a normal judge presides over the suit. On the other hand a trial by jury is used in common law systems in civil suits, jurors are impartial and appointed for only one case. [10] Due to this fact that in the common law system a complex set of evidence law exists, so that attorneys do not play any unfair tricks while in the courtroom to influence the jurors, whereas no such law exists on the Continent. [11] The manner and form of judgement is also different, in the case of civil law system the judgement is short the higher the court the shorter the judgement and there is no doctrine of precedent although consistency is ensured. On the other hand in common law countries the judgement is given according to previous judgments which can be attributed to the facts of the case under examination. There is an organized exposition of all the facts that led to the controversy and that furnish the base for the analysis of the legal problem. [12] Another salient difference is the fact that written law in civil countries is primary unlike the situation in common law countries where the reverse situation exist. Thus the line of thought of judges when deciding cases dealing with a lacuna in the law will be still heavily influenced with the structure found in the written law and sometimes seem to work by analogy if the situation allows such practice. Reverting to the appeal stage continental countries, like for example France allow for a de novo appellate review by the courts d’appel, this is not possible in a common law country since the court hearing the appeal cannot ignore the first court appreciation of facts and do a de novo appeal.

Malta is a country of mixed jurisdiction meaning that it has elements of two systems, the continental one and the common law one. As Maltese we can say that although our code is highly influenced from the Code de Napoleon, which was a civil code, as a country Malta had been under the influence of the British for many years and it goes without saying that as all colonies Malta had absorbed elements of the common law system. Similarly, Louisiana was considered as a state in America having a strong influence of civil legal tradition many institutions which were mainly common law based started to creep in the state, as Lambert [13] recounts the first item to change was the jury trial in civil cases, “exclusionary rules of evidence, direct and cross – examination of witnesses, similar common-law anomalies necessary to civil jury trials followed.” However this was not the end and the mixture of elements of the two systems continued. This does not mean though that every mixed jurisdiction is the same, one has to note that the mixture of laws can be found in varying degrees.

In 1995 there was the reform of the procedural law, this reform was meant to address many of the problems at the time mainly the delays and lack of efficiency of the courts. [14] According to the reforms, there was to be a pre-trial where the judge collects all the facts and points of law and gathers all the witnesses, all this had to be carried out before the first sitting. The judges had decided to create the post of the “Master”, where one judge out of the bench, was to take care of this pre trial stage and address new cases. But this judge was not the one which was to hear the case in the sitting. [15] In 1997 the reform introduced in 1995 was to be implemented. The chief justice at the time Dr Said Pullicino, as quoted in “Professional Ideals in Maltese Legal Practice” [16] said that the Master system proposed by judges had failed. However then the Minister of Justice of the time, introduced the advisory committee which had to tackle the job handed before to the master, and thus a new master system was introduced.

According to Dr Zammit, this particular reform had caused controversy. Even due to the fact that the reform also expounded that there was to be a choice which had to be left in the hands of the judge, whether to hear the witnesses orally, as was the practice till the date, or if to listen to a read out affidavit. [17] In my opinion, this brought more mixture between the two systems because before the judge was passive, like the common law judge, since evidence was always heard orally and in this case the judge is taking a decision on the form and progress of the suit, moreover the fact that testimony was always given orally and now there could be the choice of moving to affidavits, meant a change from one legal system to another. Oral evidence was inherently found in continental systems while affidavits were found in common law systems. Still as Dr Zammit recounts in his article ‘even if this affidavit system were to be chosen the opposing lawyer was to continue to enjoy the facility of conducting an oral cross examinations of parties and witnesses on the testimony contained in their affidavits.’

Moreover the third innovation stipulating that there was not to be any adjournments but continuation of evidence and cross examination also meant a divergent from one civil law element to a common law one. In the American and English systems the cases start and they were not interrupted and thus the lawyers had to prepare for any surprise and had to have the control of all evidence. [18] Before the reform of 1995 was introduced, thus the situation was that civil cases were heard in a fragmented way with many adjournments, an element common to the continental systems.

Still many items remained continental in nature, in Malta’s case the civil court has a collegial of judges or as it is most commonly known as the bench and there was no one judge hearing the case. In common law countries the reverse situation existed there was one judge which was passive and which was there to hear what the attorneys of both parties had prepared. Moreover in Malta the opinion of the dissenting judge is not allowed, as it is on the other hand allowed in the common law countries. In our courts parties would receive one judgement which is anonymous in the sense that no judge identifies himself/ herself to any part of the judgement. With regards to experts used in civil cases, our courts appoint experts themselves and they would be thus presumed to be neutral and not siding with any party of the case. This is also an element which is inherent to the continental system, with the difference that in common law countries each side to the case appoints is own experts to adjudicate on each party’s interest. [19]

It is important to note that our courts are not bound by the doctrine of precedent as courts found in common law countries are and the courts can decide freely on a point of law, but consistency and certainty of the law are always safeguarded. Moreover Malta does not adopt the jury trial in civil cases, as happens in civil law countries.

In concluding, there have been many observations that the two systems are merging into each other, the word used usually is “re-approachment”, and their difference is not that exclusive as one might think. As Dainow says, ‘In every country, a legal system is a part of the life and the culture of the people for whose needs it has developed. Its evolution including its susceptibility to outside influences cannot be dissociated from its own characteristics. This should never be lost from sight’. [20]