The Major Differences between Common Law Systems of Law and Civilian Systems of Law

Introduction

            Under common law systems of law, judicial precedents play an important role in the construction and application of law with the goal of adhering to settled law.[1]  By contrast, under civilian systems of law the law is primarily derived from codification with the result that judicial precedents have little impact on the rule of law and are used only as a guide to how the specific code was previously interpreted.[2]  This distinction between the two systems of law has consequences for the roles of the judiciary.  Under the common law systems the judiciary acts as a bastion between the state and its subjects. Under civilian systems of law the judiciary functions as the state’s mouthpiece.  This research examines the major differences between these two systems of law by reference to their respective procedural regimes.  The aim is explain the distinctive functions of the judiciary.         

Background and History

            Understanding the distinguishing features of common law and civilian systems of law requires some knowledge of their respective histories.  The foundations of each system are uniquely tied to its origins and subsequent developments.  The major differences between common law and civilian systems of law are immediately obvious from their respective historic developments.  This part of the paper will therefore offer a brief overview of the history and development of the common law and civilian law systems.

i)                    The Common Law System

The common law system is deeply entrenched in English history.  It was developed primarily as a tool for protecting private property from arbitrary state action.[3] Prior to the Norman Conquest of 1066 England did not have a unitary system of law.[4]  The English legal system consisted of oral customs which were specific to each region under England’s various territories.[5]  For instance, in the South of England the law of Jutes differed from the Mercians’ law in the middle region.[6]   In each region a court sat and applied its own law according to developed customs and which differed from one region to another.[7]

In 1154, Henry II amalgamated these varying common laws and created a single court system that was common to all of England to the extent that local customs were defined by reference to national standards.[8]  It was during this time that circuit judges were introduced in to the English Legal system and were so named for their travels about the country to preside of legal hearings.[9]  The decisions rendered in these hearings were documented,  setting off the practice of judicial precedents where past decisions would bind the court in which it was rendered as well as all of the lower courts.[10] This practice became known as the doctrine of stare decisis. [11]

Other developments would follow and the common law soon became characterized by a system of supremacy.[12]  This supremacy dictated that the King was not above the law and established the independence of the judiciary.  Jury trials would also function as a tool in the concept of common law principles of supremacy.  Today that supremacy extends over governmental powers.  A practice whereby the King would make proclamations was vetoed by the early decision of Prohibitions Del Roy.[13]   In this case, Edward Coke, Chief judge of the Court of Common Pleas set the parameters by which common law would develop.

Coke in his ruling stated that Parliament and not the monarchy make statutory laws and only statutes could override the common law.[14]  Moreover, it was for the judges to interpret and apply the law as passed by Parliament and as decided by the doctrine of stare decisis.[15]  Prohibitions Del Roy therefore sets forth the foundations of common law as a method for the separation of powers.[16]  These practices and policies gave way to the current concept of common law which is typically followed in many of Great Britain’s former colonies such as the US, Canada, Australia and the remaining Commonwealth countries.[17]

ii)                  Civilian Law Systems

Civil law takes its roots from ancient Rome at a time when Roman civilization was characterized by firm legal philosophies that were devised to explain principle rules.[18]  The rule of law under this regime emanated in part from the legislature and in part from opinions rendered by scholars who when asked would provide their opinions to the judiciary presiding over legal disputes.[19]  By the 6th century emperor Justinian consolidated the sources of law resulting in the Corpus Juris Civilis which translates into Body of Civil Law and is often referred to as the Justinian Code.[20]

            The Justinian code however, was only applicable to the eastern division of the Roman Empire since the Western region had by its implementation fallen under the rule of the Germanic invaders.[21]  By the end of the 11th century the Corpus Juris spread throughout Italy and many universities throughout Europe began to teach law from the perspective of the Corpus Juris.[22]  As a result the Corpus Juris took on an important role in the development of European law.  Other important elements of law in Europe were canon laws together with the merchant practices and customs. [23] The amalgamation of Corpus Juris, canon and merchant law  came to be known as jus commune came to be the basis for the rule of law throughout Europe. [24]

            As jus commune developed it would become the source of law when local statues and customs could not provide a satisfactory or clear response to a legal dispute. [25] By the nineteenth century the Corpus Juris began to lose its authority and a far more systematic and concise codification effort took place throughout Europe and forms much of the basis for the concept of modern civil law.[26]  The Napoleonic Code of 1804 was one of those efforts. [27] The Napoleonic Code encapsulated five French code and included, the 1807 Code of Civil Procedure, the Commercial Code 1808 together with the Penal Code, 1811 and the Code of Criminal Procedure 1811.  By the 19th century a number of European countries would follow this example and would codify their laws.[28]

            These codes functioned as the authority for law rendering all that came before it obsolete and all legal teaching and practices would focus narrowly on the various codes within their respective jurisdictions. [29] As the codes differed from one European nation to the other the jus commune was no longer a suitable or reliable form of reference. [30] The civilian system of law would spread to African, Asian and Latin American countries that were once colonies of European countries such as France, the Netherlands, France, Portugal and Spain.[31]  Other countries such as Japan, South Korea, Turkey and Thailand would also adapt the civilian system of law.[32]  Some countries and provinces such as Scotland, South Africa, Sri Lanka, the state of Louisiana and the province of Quebec maintained mixed systems of law which include elements of both common and civilian systems of law.[33]

The Major Differences Between the Civilian and Common Law Systems of Law

            The most striking difference between common and civilian systems of law is derived for their respective histories.  Those differences are in the importance attached to the source of law with the result that the procedural approaches to the practice and application of law are quite different.  This salient difference is in the treatment of statutory and judicial precedents in both systems of law.  As William van Caenegem explains:

“The origins of this difference lie in the greater importance (at least doctrinally, if not in practice) of precedent.  In the common law world much of the law is still found in binding judgments, and even where there is statute, the emphasis in teaching is still on the cases, and their facts, rather than on a systematic and theoretical analysis of legislation or ‘codes’.”[34]

            This approach to the rule of law leads to an adversarial atmosphere where legal points are often made through difficult and protracted arguments.  In many cases the law appears to be uncertain and this is natural consequence when “judicial opinions” are binding and not always clear.[35] This practice and policy in common law systems leaves a lot of room for:

“...a more inventive or speculative attitude toward litigation.”[36]

            Under the civilian system of law the approach taken in markedly different.  Far more emphasis is placed on “legislation and codes.” [37]  In a typical civilian legislation, litigation involves a:

 “...theoretical and analytical examination of the logical organisation and interconnectedness of various provisions, codes and statutes.”[38]

Case law in civilian legal systems is only relevant in cases where the applicable statute is unclear.  When that happens case law can be applied to resolve the doubts and uncertainties.[39]  Moreover, unlike the practice of common law courts, little emphasis is on the facts of the case.  The judiciary’s approach to the application of law is generally concise and to the point so that the chances of creating an adversarial practice are virtually non-existent.[40]

Law in civilian legal systems is viewed as a small part of social control in a broader spectrum.  As a result the practitioner is more inclined to steer away from a confrontational approach to litigation.[41]  By contrast, common law legal systems considerations as to the proper context of law is virtually non-existent and rarely if ever, go beyond arguments of the exact role of judges with respect to making law.[42]

 The context of law within a broader system of social organizations is largely ignored in the common law legal system.  Judges by and large make the law and contextualizing is narrowly focused on judicial decisions.  Obviously there are statutory provisions in common law systems.  However, many of the statutes are derived from case law and seek only to codify and/or supplement laws established within the judicial culture .[43]

            Jurists in the civilian law system play a role in the law making process in a manner comparable to the role of judges in the common law process.  That is not to say that jurist make the law.  The importance of jurist is derived from the fact that they were the legal minds behind the drafting of various codes and statutes.  It is therefore common for legislators and judges alike to defer to jurists for their opinions on points of law.[44]

            In common law systems jurists are usually judges themselves and even where they analyse the law they often use case law as a basis for their discussions.[45]    Therefore, even where jurists can contribute to the rule of law they too defer to case law.  As John Gray explains:

“The most striking difference between the civil and the common law lies in the greater relative importance which, in the former system, is attributed to the opinions of jurists as compared with prior decisions of the courts.”[46]

            Gray goes on to explain that since so much emphasis is placed on case law in the common law system there is essentially no real reason for jurists to develop a detailed and comprehensive legal basis for the application of law.  Moreover, there is no real reason for the application of legal science in any attempt to decide a case.  The importance of precedents has therefore usurped the functions of the jurist in that regard.    It is obvious that judges under the civilian system have far less independence than judges in a common law system.  Judges are no more than a representative or agent of the state in civilian legal systems.

Judges in their respective roles as officers of the state, there are consequences for the role of the disputants in a trial.  Unlike the common law systems where disputants play an active role in the trial, in civilian legal systems, the disputants are more passive.[47]  This largely passive role in civil law systems is derived from the narrowly defined role of the judiciary.  In civilian legal systems the judiciary play a more precise role in the administration of justice.  They are by and large “interventionist inquisitorial dispute resolvers” who merely apply “the laws emanating from Parliament”.[48]

Since the law in the common law systems emphasises law over facts, the facts are left to the parties.  In other words the disputants present the fact by way of direct examination and through re-direct or cross-examination. The result is that the parties to a dispute are largely at liberty to:

“...prosecute their cases before the courts as they saw fit, judges not becoming involved in party prosecution or presentation.”[49]

            At the end of the day, judges in the common law system have both adjudication and law making powers.  Judges in the common law system do not have the power to investigate the facts of a case as they do in the civilian legal system.  Under common law jurisdictions civil law judges may determine the facts when they are inconsistent as presented by the disputants.[50]  Judges under the civilian law jurisdictions have investigative powers to the extent that they may:

“...play a more direct role in formulating the factual basis of a dispute because of their investigative posers.  They apply only the laws of parliament and have no overt law-making powers.”[51]

            The investigative powers of the judiciary in the civil law system ties together two applications of law common to both the civil and common law systems. These two applications of law are procedural.  The civil law systems purports to emphasise substantive law and by doing have introduced into the trial and the pre-trial stage the court’s power to investigate the facts.  This procedure lends itself to the substantive justice in the sense that the judge will essentially have the independent facts before it and arguably arrive at a fairer decision.  Under common law systems this power is denied the courts and the parties choose what facts they hope to be using at the trial. There is always a chance that facts, pivotal to the determination of the issues may not be put before the court.[52]

            The inquisitorial nature of the judge’s role in civil law jurisdiction distinguishes between the application and construction of law in civil law and common law systems.  Since judges investigates the facts of a case, it is at the state’s expense.[53]  Under the common law system the cost of the investigation part of the trial is underwritten by the disputants rather than the state.[54]  It therefore follows that while litigation costs the state in civil law systems, it saves the state costs in the common law system.

            In criminal trials the inquisitorial role of the judiciary functions to make the differences between the common law and civil law systems far more pronounced.  The criminal process is comprised of three phases under civil law jurisdictions.[55]  They are the investigative stage, the examining stage and the actual trial.  Cumulatively, the defendant and his attorney places a far less active role in the criminal process than they do in the common law regime.[56]

During the investigative stage, the prosecutor gathers the evidence and makes a determination as to whether or not to formally charge the suspect with a criminal offence.[57]  As previously noted, the judge has investigative powers and may actively participate in the examination  part of the process. [58]

            During the examining stage the defendant is questioned by the judge and while he has the right to remain silent it is difficult to imagine a suspect refusing to answer questions put to him by a judge.   The judges likewise have the authority to interrogate witnesses during the examining stage of the criminal process.[59]  It is also important to note that the concept of cross-examination is unknown to civil procedure.[60]

            Throughout the examining stage the judges are required to record the process.[61]  Obviously, during the examining stage most of the trial process is completed and both sides already know the intricacies of the case.  As a result the trial itself is uneventful.  The case as it appears on the record from the examining phase is presented to the judge or the jury as the case may be and the attorneys for both sides make submissions. [62]  In most cases there are no juries, reserved only for the most serious of offences.  Other criminal trials are heard by judges.[63]

            This process is very different from the criminal process in the common law tradition.  In common law criminal investigations and trial there are preliminary inquires for indictable offences and the judge’s rule is merely facultative and instructive.  Judges do not question the defendant with a view to gathering evidence and merely sits to ensure that both the substantive and procedural laws are observed and complied with.  Witnesses are examined by both side but never by a judge.  Moreover the trial itself comprises the more formal and important part of the process.[64]

            One of the most significant differences between the two systems of law is perhaps the nature of codification.  As already noted, the codes and statutes are the most important sources of law under the civilian law system.  The codes in civil law countries are quite often comprehensive and typically come about as a single drafting exercise.  These codes usually cover a number of legal subjects separating private law, commercial law and criminal law.  Under the common law jurisdictions statutes do cover virtually all areas of law, they do not come about as a single drafting exercise, instead they are formulated over a period of time.  As John Gary said of the common law system, “judges are constantly making ex post facto law.”[65]   As previously noted, the statutory laws in common law have primarily evolved from common law precedents as applied by the judiciary.

            Equitable principles also provide a significant distinction between the common law system and the civilian system.  Equity provides judges with wide discretion and as such it is incompatible with the role of judges in the civil law system which is merely one of applying statutory measures.  It is surprising nonetheless that equity is not a part of the civilian law ambit when one considers that equity played a pivotal role under Roman law. Equity as it is understood in England was created to overcome some of the harsh consequences of the common law.  However, under the civilian system where the law is codified, the application of equitable principles would be inconsistent with that practice.

            Legal and judicial reasoning under common law systems and civilian law systems are quite distinct as a result of the diverging roles of judges in each jurisdiction.  Under the common law system of law, the judges when attempting to resolve a legal issue will instinctively consult case books.  In civilian law jurisdictions judges will refer to the statute.[66]  As a result of these differences the judgment handed down in a common law court is usually of an explanatory and creative nature ensuring that the judgement is accounted for and provide reasoning.  The overall intent is to reconcile the judgment with the facts of the case and past decisions on a vastly similar matter.  On the other hand, judgments handed down in civilian law courts are characterized by brevity.

            The comprehensive nature of the codes and statutes in civil law countries also influence the practice of legal reasoning.  The legal reasoning in civilian law courts generally take a deductive approach commencing with a statement of the accepted principles and rules of law as they appear in the codes and relate to a particular dispute.[67]  By contrast, common law courts typically take the opposite approach where judges are inductive rather than deductive. [68] The judges in common law countries will begin by stating the principles and rule of law as gleaned from case law and apply them to the facts of the particular case. [69]

            The diverging roles of judges in the civilian law system and the common law is manifested in the distinct court structures of both jurisdictions.  In common law systems the courts are regulated in an integrated fashion with courts having general jurisdiction over both criminal and civil matters as well as matters of constitutional and administrative law.[70]  Under the civil legal system, just as separate codes divide the legal issues, so do the courts.[71]  Courts are set up to deal with specific matters and as such are specialty courts.[72]  For instance, in a typical civil law country there will be criminal courts, commercial courts and the like.[73]

            As alluded to earlier the trial’s process in both systems are quite different in that under the common law the trial is but a single event with a number of interlocutory proceedings.  At the pre-trial process the courts do not get involved with the merits of the case unless an application is made for the dismissal of the originating claim. [74] Under the civil law system the trial process is a series of prescribed events that invariably involve the merits of the case and the presentation of the evidence. [75]

These procedural differences are a testament to he diverging roles of the judiciary in each jurisdiction.  As previously noted, under the civilian legal system the judge plays the role of the primary interrogator.  In the common law system the judge acts as a medium between the attorneys for both sides and his role his secondary to the role of the attorneys involved in the litigation.  The opposite is true in the civil legal system where attorneys do not lead the witnesses in the presentation of the evidence.[76]  The judge assumes responsibility for this role in the civil law system.[77]

The different means by which the principles of law are determined accounts for another salient difference between the two systems of law.  Under the civil law traditions judges take the position that it is not their job to create law, but merely to interpret and apply the law. [78]  A judge in the civil law system in his purely technical and clinical approach to the law will reach his decision by pursuing the relevant statute and when that fails he will typically consult with legal scholars. [79] The common law judge however has at his disposal the authority and the resources to exercise a measure of creativity.

The manner in which are selected is also indicative of the different roles that each play under the common law and the civilian law systems.  Civil law judges are typically civil servants under the civil law system.[80]  The recent college graduates can become judges by enrolling in an institution and taking specific courses for the position in a specific jurisdiction. [81] Common law judges however are usually selected and will hold the position for a specific term or until retirement. [82]

The role of the judiciary which dictates the role of the attorneys is also reflected in the different manner in which legal training takes place.  A high school graduate can go on to study law under the civil law system, foregoing any form of intermediate study.[83]  Law is studied at a faculty of law and the graduate will not usually have a college level degree. [84] Under common law jurisdictions law is studied at the college degree level and the law student typically combines the study of law with other disciplines.[85]  It can be argued that this method of studying law in common law jurisdictions has the capacity to create a lawyer and/or a judge with a wider social or moral conscience.   As Woodfin Butte observes:

“The common law lawyer, by and large, simply doesn’t care whether such a [comprehensive, logical, legal] system exists or not. He is busy deciding cases, with the aid of judicial precedent and with or without the aid of statutory enactment of rules in particular cases. If from this process scholars can begin to see bits and pieces of a system emerging, he is interested in it as a potentially useful tool; but he does not regard the discovery or the development of such a complete and logical system as essential or even important in his continuing task of achieving justice in an infinite number and variety of individual cases.”[86]

            Merryman et ales presents an entirely different portrait of the civil law graduate.  He points out the law student at the civil legal system’s institute learns:

“That law is a science, and the task of the legal scientist is to analyze and elaborate principles which can be derived from a careful study of positive legislation into a harmonious systematic nature.”[87]

Conclusion

            Although vastly different approaches to the rule of law, the administration of justice and the separation of powers, both common law and civil law systems share a common design.  That common design is social control and regulation.  The procedural differences are consistent with the roles that judges play in each jurisdiction.  Those roles largely influence the roles that the disputants and the lawyers play in the court room and throughout the trial and the pre-trial process.  In the final analysis, the judiciary under the common law system acts as a mediator between the state and its subjects.  In contrast the judge in the civilian legal system acts as an agent of the state.

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Tomkins, Adam. Our Republican Constitution. Hart Publishing (3rd Edition, 2005) 70 http://books.google.com/books?hl=en&id=iDjJs0KwZq0C&dq=Our+Republican+Constitution&printsec=frontcover&source=web&ots=gfT-stBNjZ&sig=_cUQ3eJJpoYvtcEx_KmL23YMxkA&sa=X&oi=book_result&resnum=2&ct=result#PPA70,M1

Turcotte, Kellinde. “Why Legal Flexibility is not a Threat to either the Common Law System of England and Australia or the Civil Law System of France in the Twenty-first Century.” (2005) 1(2) Hanse Law Review, 190 http://www.hanselawreview.org/pdf2/Vol1No2Art5.pdf

Van  Caenegem, William. “Adversarial Systems and Adversarial Mindsets: Do We Need Either The Role of Judicial Decisions and Doctrine.? (2003) Bond Law Review, 15(2) 110, 122 http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1264&context=blr

Von Mehren, Authur and Gordley, James, R. An Introduction to the Comparative Study of Private Law.   Cambridge University Press (3rd Edition, 2006), 45.

http://books.google.com/books?id=SVOOOamafHAC&pg=PA57&lpg=PA57&dq=Von+Mehren,+Authur+and+Gordley,+James,+R.+An+Introduction+to+the+Comparative+Study+of+Private+Law.&source=web&ots=L3mS32eEO1&sig=Z_ZovuS-PR4FOJ1H_KYCm7RSZeg&hl=en&sa=X&oi=book_result&resnum=1&ct=result#PPA45,M1

Zander, Michael. The Law Making Process. Cambridge University Press (2005) at 215

http://books.google.com/books?id=-vfX0wfW_E8C&pg=PA215&lpg=PA215&dq=the+doctrine+of+stare+decisis&source=web&ots=-ZDzohKkyd&sig=s_1WrMBVr15TS34lHuZ__AyRgHc&hl=en&sa=X&oi=book_result&resnum=7&ct=result

Joireman, Sandra, Fullerton. “The Evolution of the Common Law: Legal Development in Kenya and India.”

The Evolution of the Common

Law: Legal Development in

Kenya and India

SANDRA FULLERTON JOIREMAN

Wheaton College, Wheaton, IL, USA

ABSTRACT Recent cross-national studies of the institutional prerequisites of economic

growth have identified common law systems as superior to those of civil law. The

assumption is that all common law systems share a similarity of structure and law

which creates an environment facilitating investment and contract enforcement. Yet,

due to its evolutionary nature, common law is not everywhere the same, nor is the

historical development of the common law similar in all countries. This paper makes

this point by examining the political development of common law in India and Kenya,

in order to compare their legal institutions and histories. Both of these countries

adopted common law through its transplantation in the context of colonial domination

rather than organically. The paper concludes that the two countries, though sharing

the common law, had very different colonial experiences of legal development.

Moreover, once Kenya and India achieved independence, political circumstances

affected institutional development and the application of law in each country.

KEY WORDS: Common law, legal development, colonisation, rule of law, Kenya,

India

Introduction

The development of a modern legal system and the implementation of the

common law have long been noted as benefits of British colonisation. The

Commonwealth & Comparative Politics

Vol. 44, No. 2, 190–210, July 2006

Correspondence Address: Sandra Fullerton Joireman, Associate Professor of Politics and

International Relations, Wheaton College, Wheaton, IL 60187, USA. Email: [email protected]

wheaton.edu

1466-2043 Print=1743-9094 Online=06=020190–21 # 2006 Taylor & Francis

DOI: 10.1080=14662040600831636

192

impediments to its transplantation. While the common law might begin with

similar characteristics, we expect that time and the particular circumstances

of each country, from the role of customary and religious law to the degree

of ethnic diversity, would lead the common law to adapt and become

unique in each setting.

Common Law Adaptability

Common law was first developed in England as a process of applying continental

feudal law; a process that developed over time into a hallmark of

English life and became something quite distinct from the application of

law on the continent. Common law was and is a particular process of investigation

and decision-making.2 English common law developed to protect the

property of individuals and limit the power of the state to expropriate

resources. From the time of the Magna Carta in 1215, the common law was

supported by the aristocracy as a hedge against encroachment on land and

liberty by the state.3 The common law was developed as a procedure that if

properly followed, would result in a judgment for the plaintiff or defendant.

The process, rather than the application of a code or law, is intended to lead

to justice. This process was developed in the relatively homogeneous

context of England where the oral tradition and the elevated, respected role

of the judiciary were important elements of the political culture.4

Common law scholars and practitioners argue that one of the strengths of

common law is its evolutionary nature (Hayek, 1973; Eisenberg, 1988;

Rubin & Bailey, 1994; Morriss & Meiners, 2000). Because the common

law system relies on case law it can evolve over time in response to

changes in the political environment. Presumably, this would make the

common law particularly advantageous for transplantation into other contexts

as the body of case law could develop in a way that responds to the needs of

the society in which it is applied. Civil law, the continental European system,

is based on legal codes that are interpreted by judges.5

English common law has been coupled with an adversarial system of

justice. An adversarial system, such as that which is in use in both the

United States and Britain, is one in which the parties to a dispute are pitted

against one another in a relatively brief, oral contest with the expectation

that competition between the two sides will reveal the truth.6 The plaintiff,

the defendant and lawyers representing them are gathered together to

present their case before a jury and a judge, who is expected to be an impartial

arbiter of justice. Perhaps due to the emphasis on process, the common law

system gives us the idea of legal precedent. Statutes may be used in

common law systems as well, but judicial precedent, or the reliance on

previous decisions to guide the present decision, dominates the justification

192 S. F. Joireman

[1]Alegro, Mary, Garvey. “The Sources of  Law and the Value of Precedent: A comparative and Empirical A Civil Law State in a Common Law Nation.” Louisiana Law Review (2005) Vol. 65, 775-822, at 783. [2] Ibid at 787. [3] Joireman, Sandra, Fullerton. “The Evolution of the Common Law: Legal Development in Kenya and India.” Commonwealth and Comparative Politics.  (2006) Vol. 44(2), 190-210 at 192. [4]Description and History of Common Law.(n.d.) http://www.runet.edu/~junnever/law/commonlaw.htm [5] Ibid [6] Ibid [7] Ibid [8] Ibid [9]Bryson, John, LJ. “Henry II and the English Common Law.” Lecture: Plantagent Society of Australia. (July 20, 2002) http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_bryson_200702 [10] Description and History of Common Law.(n.d.) http://www.runet.edu/~junnever/law/commonlaw.htm [11] Zander, Michael. The Law Making Process. Cambridge University Press (2005), 215. [12] Thomas, Chester, Ernest. Leading Cases in Constitutional Law. Harvard University Press, (1885, 1st Edition) p. 6. [13] Prohibitions Del Roy (1608) Mich. 5 Jacobi 1 [14] Prohibitions Del Roy (1608) Mich. 5 Jacobi 1. [15] Ibid [16] Tomkins, Adam. Our Republican Constitution. Hart Publishing (3rd Edition, 2005), 70. [17]Hamilton, James. “Non-Prosecutorial Functions of the Prosecutor in Common Law Countries.” European Conference of Prosecutors, 2008 – Saint Petersburg (Russian Federation) (2008), 1-8 at 1. http://www.dpp.ie/filestore/documents/Speech_to_European_Conference_of_Prosecutors_2_July_2008_PDF.pdf [18] Von Mehren, Authur and Gordley, James, R. An Introduction to the Comparative Study of Private Law.   Cambridge University Press (3rd Edition, 2006), 45. [19] Apple, James and Deyling, Robert. A Primer of the Civil-Law System. Federal Judicial Centre (1995) Viewed September 5, 2008 at: http://www.fjc.gov/public/pdf.nsf/lookup/civillaw.pdf/$file/civillaw.pdf [20] Ibid [21] Ibid [22] Ibid [23] Ibid [24] Ibid [25] Apple, James and Deyling, Robert. A Primer of the Civil-Law System. Federal Judicial Centre (1995) Viewed September 5, 2008 at: http://www.fjc.gov/public/pdf.nsf/lookup/civillaw.pdf/$file/civillaw.pdf [26] Ibid. [27] Ibid. [28] Bergel, Jean Louis. “Principal Features and Methods of Codificatin.” (1988) La. Law Rev. 1073 at 1074. [29] Apple, James and Deyling, Robert. A Primer of the Civil-Law System. Federal Judicial Centre (1995) Viewed September 5, 2008 at: http://www.fjc.gov/public/pdf.nsf/lookup/civillaw.pdf/$file/civillaw.pdf [30] Ibid. [31] [31] Bergel, Jean Louis. “Principal Features and Methods of Codificatin.” (1988) La. Law Rev. 1073 at 1075. [32] Ibid at 1075. [33] [33] Bergel, Jean Louis. “Principal Features and Methods of Codificatin.” (1988) La. Law Rev. 1073 at 1075. [34] Van  Caenegem, William. “Adversarial Systems and Adversarial Mindsets: Do We Need Either?” (2003) Bond Law Review, 15(2) 110 at 111. [35] Van  Caenegem, William. “Adversarial Systems and Adversarial Mindsets: Do We Need Either?” (2003) Bond Law Review, 15(2) 110 at 112. [36] Ibid at 112. [37] Ibid at 112. [38] Ibid, at 112. [39] Ibid at 112 [40] Ibid at 113 [41] Ibid at 113 [42] Heydon, J.D. “Judicial Activism and the Death of the Rule of Law.” (2003) AIPJ 78.  Viewed Sept. 5, 2008 at: http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_ipp12_191004 [43]Cooray, Dr. Mark. Common Law and Statute. Viewed Sept. 5, 2008 at:http://www.ourcivilisation.com/cooray/btof/chap185.htm [44] Apple, James and Deyling, Robert. A Primer of the Civil-Law System. Federal Judicial Centre (1995) Viewed September 5, 2008 at: http://www.fjc.gov/public/pdf.nsf/lookup/civillaw.pdf/$file/civillaw.pdf [45] Ibid [46] Gray, John. The Nature and Sources of the Law. (1st Edition, 1909) at 268 [47] Van  Caenegem, William. “Adversarial Systems and Adversarial Mindsets: Do We Need Either?” (2003) Bond Law Review, 15(2) 110, at 114-116. [48] Ibid at 117 [49] Van  Caenegem, William. “Adversarial Systems and Adversarial Mindsets: Do We Need Either?” (2003) Bond Law Review, 15(2) 110, at 117. [50] Ibid at 116 [51] Ibid, at 114 [52] Van  Caenegem, William. “Adversarial Systems and Adversarial Mindsets: Do We Need Either?” (2003) Bond Law Review, 15(2) 110, 116. [53] Ibid at 114-115 [54] Ibid at 114-115 [55]Apple, James and Deyling, Robert. A Primer of the Civil-Law System. Federal Judicial Centre (1995) Viewed September 5, 2008 at: http://www.fjc.gov/public/pdf.nsf/lookup/civillaw.pdf/$file/civillaw.pdf [56] Ibid [57] Apple, James and Deyling, Robert. A Primer of the Civil-Law System. Federal Judicial Centre (1995) Viewed September 5, 2008 at: http://www.fjc.gov/public/pdf.nsf/lookup/civillaw.pdf/$file/civillaw.pdf [58] Ibid [59]Ibid [60] Ibid [61] Ibid [62] Ibid [63] Ibid [64]Monnet, Jean and Schuman, Robert. “US and EU Legal Professions: Two Lawyers Separated by the Same Justice. Common Law and Civil Law Procedures compared.” Jean Monnet/Robert Schuman Paper Series Vol. 8(4) (2008) 2-11 [65] Gray, John. The Nature and Sources of the Law. (1st Edition, 1909) at 100. [66] Turcotte, Kellinde. “Why Legal Flexibility is not a Threat to either the Common Law System of England and Australia or the Civil Law System of France in the Twenty-first Century.” (2005) 1(2) Hanse Law Review, 190. [67] Apple, James and Deyling, Robert. A Primer of the Civil-Law System. Federal Judicial Centre (1995) Viewed September 5, 2008 at: http://www.fjc.gov/public/pdf.nsf/lookup/civillaw.pdf/$file/civillaw.pdf [68]Ibid. [69] Ibid [70] Jolowicz, A. On Civil Procedure. Cambridge Press. (3rd Ed. 2000) at 12 [71]Apple, James and Deyling, Robert. A Primer of the Civil-Law System. Federal Judicial Centre (1995) Viewed September 5, 2008 at: http://www.fjc.gov/public/pdf.nsf/lookup/civillaw.pdf/$file/civillaw.pdf [72] Ibid [73] Ibid [74]Ibid [75] Ibid [76] Apple, James and Deyling, Robert. A Primer of the Civil-Law System. Federal Judicial Centre (1995) Viewed September 5, 2008 at: http://www.fjc.gov/public/pdf.nsf/lookup/civillaw.pdf/$file/civillaw.pdf [77] Ibid [78]Ibid [79] Ibid [80] Ibid [81] Ibid [82] Ibid [83] Van  Caenegem, William. “Adversarial Systems and Adversarial Mindsets: Do We Need Either?” (2003) Bond Law Review, 15(2) 110. [84] Ibid [85] Van  Caenegem, William. “Adversarial Systems and Adversarial Mindsets: Do We Need Either?” (2003) Bond Law Review, 15(2) 111. [86] Butte, Woodfin, L. “Stare Decisis, Doctrine, and Jurisprudence in Mexico and Elsewhere”.  Cited in Apple, James and Deyling, Robert. A Primer of the Civil-Law System. Federal Judicial Centre (1995) Viewed September 5, 2008 at: http://www.fjc.gov/public/pdf.nsf/lookup/civillaw.pdf/$file/civillaw.pdf [87] Merryman, John and Clark, David. Comparative Law: Western European and Latin American Legal Systems, 389 cited in Apple, James and Deyling, Robert. A Primer of the Civil-Law System. Federal Judicial Centre (1995) Viewed September 5, 2008 at: http://www.fjc.gov/public/pdf.nsf/lookup/civillaw.pdf/$file/civillaw.pdf