There are two dominant legal traditions that exist in the world today: the civil law tradition and the common law tradition. The Civil law tradition’s formation may be traced from Continental Europe whereas the Common Law tradition has its beginnings from England. Mixed legal traditions that are practiced in some countries are just variations of either tradition. There are several differences between the common law and the civil law tradition that can still be traced back from their respective origins.
The main difference of the two traditions is their source for legal reasoning. The Civil code tradition based their arguments “in legislation which, when general rules and norms of private law are in question, takes the form of a code” (Von Mehren, 2000) while the Common Law tradition bases its legal reasoning on judicial decisions and on statutes (Von Mehren, 2000). This difference in priority can be explained by the role of the legislator in both traditions. Civil law adopts the theory of separation of powers espoused by Montesquieu whereby the function of the courts is to apply the law that the legislators enacted. Common law, on the other hand, places more weight on judge-made laws and jurisprudence (Tetley, 1999).
Different countries follow different legal traditions, some strictly adhere to the common or civil law tradition while others practice a combination of the two. The paper shall compare and discuss two countries, namely the United States who follows the common law tradition and the Philippines who adheres to a mixture of both common law and civil law traditions.
The Philippine Legal tradition
The Philippine legal tradition may be traced back from the Romans. At the time of the expansion of the Roman Empire, it was faced with a problem. With the acquisition of new territory and people came contact between the indigenous Roman populace and the new settlers, the conduct of the Romans were governed by the jus civile but the new settlers were not. These new developments “created a need for a private law regime to determine and guide relationships between citizens and non-citizens” (Apple).
Another situation that called for a codified system of laws was the judicial system of the empire. During that time, a praetor or the judge, had a limited role in the disposition of cases and was elected for a term of only 1 year in office thus giving his decisions virtually no significance and weight in further cases. Furthermore, before holding office, the judge shall first read his Edict or the way on how he shall settle cases, jurists or legal experts would then create a Responsa or response wherein they answer questions espoused by the people regarding the Edict (Apple). The practice of reading the Edict was eventually abolished making the jurists turn to writing treatises covering specific aspects of Roman law.
Soon the opinions of jurists were patented and were given the force of law, but the opinions were scattered and there was still need of a comprehensive manuscript to tie it all together. Gaius did what was required, he compiled most of the opinions on several aspects of law in his Institutes which was later on improved when Justinian ordered the compilation of all Roman laws into one manuscript. From this the Corpus Juris Civilis was created which served as the first complete codified laws of the Romans (Apple). The institutes together with the Corpus Juris Civilis became the foundation of the civil law system and contained most of the provisions used today.
In the medieval ages, Italy made refinements on the Corpus Juris Civilis. By the middle of the thirteenth century, the Italian glossators who served as legal advisers of judges not only “created law faculties in the universities, but also developed a systematic method of teaching law and a definitive textbook for instruction.”(Apple) The first law school was then established in Bologna by the glossators, and there many scholars from different countries specially Spain studied law.
The Spanish scholars brought with them the Italian-refined Corpus Juris Civilis with them back to Spain which influenced the creation of Spain’s own codified laws known as the Codigo de Las Sietes Partidas. The Codigo de Sietes Partidas was the foundation of Spanish private law until 1889 when it was replaced by the Codigo Civil. When the Spaniards came to the Philippines, they brought with them their own legal system and with it the Codigo Civil which in turn became the foundation of the Philippine Civil Code and the Philippine legal system.
Since then the Philippines has strictly adhered to the civil law system. However, upon the approval of its new Civil Code on June 18, 1949 and it subsequent enactment on 1950, the distinction of the Philippines as a civil law country became blurred. The conflict arose when the new Civil Code in one of its provisions stated that jurisprudence shall be considered as law, to wit: ART. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines (n) Because of this provision, the Philippines arguably has left the traditional civil law system and turned into a mix system, giving jurisprudence the strength of law.
The United States Legal Tradition
The common law tradition in the United States had its humble beginnings from England. During the time of the glossators in Italy, a new type of legal system mainly influenced by the jury system is gaining ground. It first started as a system that Frankish kings used in order to declare what lands the king owns and what rights he has over it in a given district. In this practice, normally a group of the best and most trustworthy men it that district is appointed to make the declaration (Apple).
When William the Conqueror conquered England, his government adopted a system wherein issues or problems regarding land were settled through the inquisition of neighbors. This was the foundation of the jury system as found in the United States. The jury system then unlike the system used today is very different, today the jurors are only concerned with the case that they are appointed to, whereas before, the jurors are bound to answer truthfully all questions asked of them regardless of its relation to a case, to wit:
In its first guise in England the jury was a group of persons, usually local citizenry or a body of neighbors, who were summoned by a public official and, after the administration of an oath, were bound to tell the truth “whatever the truth may be” in response to a specific question. The questions that were posed to these juries were not always related to specific disputes between individuals (Apple).
Only until the reign of Henry II was the jury system been made as a formal part of the justice system. In 1166, the same king mandated a procedure for jury trials that should be followed in cases where a person is dispossessed of his land. By the 13th century, jury trial has grown, it does not only apply to dispossession of lands but was also used in the disposition of criminal cases.
The jury system did not evolve due to a lack of legal system in England, truth be told, Italian scholars that studied in the university in Bologna went to England together with their legal knowledge and wrote books about Roman law. The government of England did not find the Civil law tradition appealing, “the arrival and adoption of the jury trial as a mechanism for resolving disputes, the creation of royal courts to dispense justice throughout the realm and a cadre of trained judges to preside over and administer them, and the rising commercial affairs in London resulted in a turning away from Roman and ecclesiastical law.” (Apple) Civil/Common Law vs. Common Law: Philippines vs. United States
One of the differences between a common law and a civil law system is the judiciary. The courts are perceived differently, the under the former as courts of equity and under the latter, courts of law. Civil law “categories are based on the rules themselves, e.g. private law and public law, while common law categories were founded on the law that was administered by different courts, e.g. common law courts and the court of Equity” (Tetley, 1999). The same difference can be found between the Philippines and the United States. The Philippines being more of a civil law country gave more importance on substantive law while in the United States rules on procedure was traditionally given considerable attention (Tetley, 1999).
Another difference of the Philippines and the United States legal system is the orientation of the law. The Philippines, just like most civil law countries, tend to focus more on rights and obligations, whereas, the United States is more inclined “toward the jurisdiction of particular courts to grant the sought-after remedy”(Tetley, 1999). In relation to this, Civil law countries rely on the courts to choose or create an appropriate remedy for lack of a clearly defined system of remedies. On the other hand, the courts with jurisdiction over a case in common law countries are the ones that set the rights and obligations of the parties because this type of legal system lacks a unitary system of rights and obligations. The only basis for rights and obligation in this type of legal system lies in jurisprudence and precedents.
The main difference that has a great effect on the criminal justice system of a civil law country and a common law country that is evident in both the Philippines and the United States is the trial process. In the Philippines, trials involve an extended process with a series of successive hearings and consultations for the presentation of evidence, to wit:
SEC. 2. Adjournments and postponements. A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require, but shall have no power to adjourn a trial for a longer period than one month for each adjournment , nor more than three months in all, except when authorized in writing by the Court Administrator, Supreme Court (Rule 30. Revised Rules on Civil Procedure)
Consequently, the United States has a single-event trial.
The role of judges are also different between the two legal systems. In the civil law system trials, the role of lawyers are sometimes derogated due to the fact that judges are allowed to act as principal interrogators of witnesses appearing before his sala. While, in common law system trials, the lawyers are the main players and the judge only acts as a manager. The lawyers are the ones who introduce evidence and interrogate the witnesses (Apple), the judge is present just to assure that the trial is properly conducted and that justice is fairly administered (Gorin, 1997) at the same time refraining from making any comments on the witness’ s credibility and strength of testimony.
The differing roles of judges in both legal systems impact how judges view themselves. In a civil law country, the attitude of judges are that they are mere appliers of the law, they have no business creating it, as a matter of fact, judicial legislation in the Philippines is taboo. Judges possess a less active role than their counterparts. In the Philippines, judges just apply the law without any opportunity of judicial creativity while in the United States, judges are free to choose what law to apply from the rich archive of precedents (Apple).
In connection with the trial process and judicial perception of the courts comes another difference, the criminal judicial proceedings. In the United States, the stages of criminal prosecution involve the filling of charges, arraignment and bail and then trial by either a judge or most commonly by a jury of his own peers composed of 12 to 23 citizens meeting in closed session (Gorin, 1997).
In the Philippine setting, criminal prosecution starts with the filing of charges, followed by a preliminary investigation conducted by a judge, prosecutor or other officers authorized by law to determine probable cause, then a warrant of arrest shall be issued by the judge upon showing of probable cause, when the accused is brought before the court he shall be arraigned and may be released upon the posting of bail or on recognizance, then trial which includes the presentation of evidence and finally sentencing the offender (Revised Rules on Criminal Procedure). The decision of guilt or not, unlike in the United States, shall be made not by a group of men but by the judge himself.
This particular anomaly may be traced back to the basic difference of civil law and common law. In the United States, together with other common law countries, the courts are viewed as courts of equity thus the equitable remedy that shall be afforded the parties should come from what a group of people believes and sees as equitable. In contrast, Philippine courts along with other civil law courts are courts of law and the decision handed down by the judge is not what he thinks is equitable but what he believes is the proper interpretation of the law based on the facts presented.
Effectiveness of the Civil law tradition in the Disposition of Criminal cases in the Philippines
The effectiveness of the Civil law tradition in the Philippines as to the disposition of criminal may not be perfect but it is working. There are several reasons why the civil law tradition is better suited in the Philippines rather than common law tradition. Firstly, the Philippines is a third world country, its resources are limited and the fiscal budget for every year just barely sustains the government. If the Philippines shifts into a jury system that would mean added costs for the judicial branch, having a jury system requires more resources than having a case decided by a judge.
First off, the jurors should be compensated for their trouble, which means additional costs. Sometimes, situations call for the housing of the jurors, again additional costs. Lastly, a new branch would then have to be created to facilitate the selection of the possible jurors, this again entails additional costs in the form of wages for the workers that are to be assigned in that department.
Another reason why the common law system may not satisfy the legal needs of the Philippines is because of corruption. The corruption in the Philippine government is prevalent. Not only is corruption present in the executive branch but it has also seeped through the judiciary. The civil law tradition, although unintentionally has an inherent system that protects itself or at least minimizes the effect of corruption. Since in civil law traditions, the laws are already codified and the judge’s function is to apply the law, the judge’s discretion on the disposition of cases is kept at a minimum which consequently keeps the of opportunity for corruption also at a minimum.
Effectiveness of the Common law tradition in the Disposition of Criminal cases in the United States The jury system is arguably a good legal system for those countries that can afford it. The idea of being judge not by one man alone but by a jury of your fellow citizens that requires unanimity in deciding your fate based on equity is far more better than placing your life in the hands of a single judge whose interpretation of the law may be biased.
The benefits of a jury system in contrast to a civil law system are: (1) jurors are your local citizens that are in the best position to evaluate your conduct; (2) the jurors are anonymous in the preliminary stages of trial thus reducing the risk of bias or undue influence; (3) conviction requires a unanimous vote; (4) jurors are temporary appointees giving them more leeway on their decisions, they can choose what they think is the appropriate action without fear of retaliation; and (5) it is hard for a group of 12 people to come up with the same conclusion unless it is based on the facts unlike a judge who has the power to appreciate evidence presented before him based on his own whim (CJS).
All the above-mentioned benefits are exploited by the United States. Their jury system is effective in the United States for several reasons. For one thing, United States statutes are commonly governed by equity, in such a case what better way to determine what is equitable than by selecting a few people from different walks of life, from different communities at random and asking them what they believe is equitable. Another reason why the Common Law system is better suited for the United States is because of the size of the United States.
The United States is made up of more than 50 states, and each of these states has their own laws to follow. If the civil law concept of codifying the law and strictly applying one code for the whole United States is applied, confusion rather than organization will ensue. The state of New York is different from the state of California, from Maryland and so on, it is composed of people who have different interests and inclinations than that of Maryland, as such, its laws are different, its law are patterned to accommodate their way of life.
Transnational crimes gained global attention after the continued terrorists attacks on America and the rest of the world. With its rise came the question on whether the present legal systems can deal with this crisis adequately. In dealing with transnational crimes requires a swift and reactive legal system The common law system in the United States is well suited for the part, unfortunately, the Philippines is not.
The United States legal system allows it to enter into agreements with other countries to face transnational crimes immediately and upon signing will have the force and effect of law. As a matter of fact, the United States has just recently entered into an agreement with the European Union to improve coordination between U.S. and EU prosecutors (Lowenthal, 2006). The treaty now binds the United States.
In the Philippines, it is different, although the Philippine Constitution states that it “adopts the generally accepted principles of international law as part of the law of the land,” (Art. 2 Sec. 2, Philippine Constitution) it still needs a statute to enforce a treaty signed by it for it to have the force and effect of law as found in Section 21 of Article VII of the Philippine Constitution, to wit:
No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.
In fine, the Philippine legal system is less reactionary than the United States with respect to transnational crimes. However, the effect of this is more apparent than real, since the Philippines is seldom the target of transnational crimes whereas the United States has since time immemorial stood at the forefront of combating this types of crimes.
- 1987 Philippine Constitution Apple, J.G. & Deyling, R.P. A Primer on the Civil-Law System. Retrieved January 11, 2008, from http://www.au.af.mil/au/awc/awcgate/fjc/civil_law.pdf
- CJS. Tort Reform Part II: Preserving the Right to Trial by Jury. Retrieved January 12, 2008, from http://www.centerforajustsociety.org/IdeasInAction/2005/20050609.asp?pgft=1
- Gorin, Stuart (1997). Overview of the U.S. Judicial System. Retrieved January 10, 2008, from http://usa.usembassy.de/etexts/gov/overview1197.pdf
- Lowenthal, Carrie (11 November 2006) . United States, European Union Sign Pact on Transnational Crime. Retrieved January 12, 2008, from http://usinfo.state.gov/xarchives/display.html?p=washfile-english&y=2006&m=November&x=20061111134954tneweolc0.2924311 Philippine revised Rules on Civil Procedure
- Philippine Revised Rules on Criminal Procedure The New Civil Code of the Philippines Tetley, William (29 November 1999). Mixed Jurisdictions: Common Law vs Civil Law (Codified and Uncodified). Retrieved January 11, 2008, from http://www.unidroit.org/english/publications/review/articles/1999-3.htm
- Von Mehren, Arthur (2000). The U.S. Legal System: Between the Common Law and Civil Law Legal Traditions. Retrieved January 11, 2008, from http://w3.uniroma1.it/idc/centro/publications/40vonmehren.pdf