licenta murzac

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UNIVERSITATEA DIN PITETI

FACULTATEA DE LITERE

PROGRAMUL DE STUDII:LIMBI MODERNE APLICATE

LUCRARE DE LICEN

Conductor t!!n"!#c:

L$ct%un!&%dr% N!co'$t( MINC

Stud$nt:

Mur)(c R(du

*+,-

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UNIVERSITATEA DIN PITETI

FACULTATEA DE LITERE

PROGRAMUL DE STUDII: LIMBI MODERNE APLICATE

CRIMINAL LA. VS% CIVIL LA.

TERMINOLOG/ AND DIFFERENCES

Conductor t!!n"!#c:

L$ct%un!&%dr% N!co'$t( MINC

Stud$nt: Mur)(c R(du

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Chapter 1

The Concept of Law

1.1 Law and society

The study of legal philosophy is called jurisprudence. Many of the worlds greatest philosophers

have theorized about the nature and meaning of law.Jurisprudential philosophers asked questions

like these !hat is law" #s bad law still law" #s custom law" #s law what it says in the statute

books$ or what really happens in practice" %hilosophers have debated the essential nature of law

for centuries$ yet there is no single commonly accepted definition.

Most of us$ if asked to de&ne law$ would probably do so in terms of rules for instance$ we

understand criminal law$ forbidding certain activities$ as a set of rules de&ning the types of

behaviour which$ if indulged in$ result in some form of official 'retaliation through police

intervention$ the courts$ and some form of criminal sanctionsuch as imprisonment$ or a &ne. #n

their work on the subject$ Twining and Miers offer a wide de&nition of a rule as 'a general norm

mandating or guiding conduct or action in a given type of situations.() rule prescribes what

activity may$ should or should not be carried out$ or refers to activities which should be carried

out in a speci&ed way. *ules of law may forbid certain activity + murder and theft are prohibited

through rules of criminal law + or they may impose certain conditions under which activity may

be carried out ,car drivers and television set users must$ for e-ample$ have valid licences for

those items before they can legally drive or use them. )gain the law contains some rules which

we might call 'power/conferring rules rules which enable certain activities to be carried out

with some form of legal backing and protection$the best the best e-ample of which is perhaps the

law of contract$ which provides rules which$ among other things$ guide us in the manner in

which to act if we wish to make a valid contract. 0ecause a rule guides us in what we may$ ought

or ought not to do$ it is said to be normative.!e can best grasp the meaning of this term if we

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contrast a normative statement$ telling us what ought to happen$ with a factualstatement$ which

tells us what does happen. 1or instance$ the statement 'cars must not be e driven e-cepton roads

is a normative$ 'ought/type statement$ whereas 'cars are driven on roadsis a factual$ 'is/type

statement. )ll rules$ whether legal$ moral or just customary$ are normative$ laying down

standards of behaviour to which we ought to conform if the rule affects us. )lthough the notion

of a 'system of rules probably corresponds closely to most peoples idea of law$ we can soon see

that this is not sufficient by itself to be an accurate or adequate account of law $because there

are$in any social groups various 'systems of rules apart from law. 2ow do we distinguish$ for

e-ample$ between alegal rule and a moral rule" #n our society$ though we consider it immoral to

tell lies$ it is not generally against the law to do so.34f course$ some moral rules are also

embodied in the law$ such as the legal rule prohibiting murder. This does not mean$however$ that

law and morality always correspond. #t would take a very wide de&nition of 'morality$ for

instance$ for the idea to be accepted that a driver who e-ceeds the speed limit by only two miles

per hour ,a criminal offence would thereby be acting immorally5

)gain$ how do we distinguish between a legal rule and a rule of custom or etiquette" !hat is the

difference between a judges ordering a convicted person to pay a &ne for breaking a criminal/

law rule and a fathers ordering his son to forfeit his pocket/money for disobeying him" 6learly$

there are differences between these types of rule$ and perhaps the only feature which they all

have in common is their normativeness. 0ut where do these differences lie" The analysis of law$

and the speci&cation of the distinctions between law and other rules$ have proved surprisingly

difficult to articulate. !riters have$ over the years$ adopted various perspectives on legal

analysis$ sometimes concentrating on law as a system of rules of an official nature$sometimes

focusing upon individual legal rules $their origin and their operation as part of an overall system

m ,as can be seen in works within the sociology of law. 78ome writers have analysed law as if it

were a 'closed system$ operating within its own logical framework$ and divorced in important

ways from the wider social conte-t.

Lawis a term which does not have a universally accepted definition$but one definition is that

law is a systemof rules and guidelines which areenforced through social institutions to govern

behaviour. 9aws can be made by legislatures through legislation ,resulting in statutes$ the

e-ecutive through decreesand regulations$ or judges through binding precedents ,normally

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incommon lawjurisdictions. %rivate individuals can create legally bindingcontracts$ including

,in some jurisdictions arbitration agreements that e-clude the normal court process. The

formation of laws themselves may be influenced by aconstitution,written or unwritten and

the rightsencoded therein. The law shapespolitics$ economics$ and societyin various ways and

serves as a mediator of relations betweenpeople.

) general distinction can be made between civil lawjurisdictions,including canonand socialist

law$ in which the legislature or other central body codifies and consolidates their laws$

andcommon lawsystems$ where judge/madebindingprecedentsare accepted.

The adjudication of the law is generally divided into two main areas. 6riminal lawdeals with

conduct that is considered harmful tosocial orderand in which the guiltyparty may be

imprisoned or fined. 6ivil law,not to be confused with civil law jurisdictions above deals with

the resolution oflawsuits,disputes between individuals or organisations. These resolutions seek

to provide a legal remedy,often monetarydamages to the winning litigant.

:nder civil law$ the following specialties$ among others$ e-ist 6ontract lawregulates everything

from buying a bus ticket to trading onderivatives markets.%roperty law regulates the transfer

and title ofpersonal propertyandreal property.Trust law applies to assets held for investment

and financial security.Tort lawallows claims for compensation if a person;s property

is harmed. 6onstitutional lawprovides a framework for the creation of law$ the protection of

human rights and the election of political representatives. )dministrative law is used to review

the decisions of government agencies.#nternational lawgoverns affairs between sovereign states

in activities ranging from trade to military action.

To implement and enforce the law and provide services to the public by public servants$ a

government;s bureaucracy$ military$ and police are vital. !hile all these organs of the state are

creatures created and bound by law$ an independentlegal professionand a vibrant civil

societyinform and support their progress.

9aw provides a rich source of scholarly inquiry intolegal history$philosophy$economic

analysisand sociology. 9aw also raises important and comple- issues concerning equality$

fairness$ andjustice. There is an old saying that ;all are equal before the law.;. The author )natole

1rancesaid in ($ ?#n its majestic equality$ the law forbids rich and poor aliketo sleep under

bridges$ beg in the streets$ and steal loaves of bread.? !riting in 7@A 06$

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http://en.wikipedia.org/wiki/Common_lawhttp://en.wikipedia.org/wiki/Contracthttp://en.wikipedia.org/wiki/Constitutionhttp://en.wikipedia.org/wiki/Rightshttp://en.wikipedia.org/wiki/Politicshttp://en.wikipedia.org/wiki/Economicshttp://en.wikipedia.org/wiki/Societyhttp://en.wikipedia.org/wiki/Peoplehttp://en.wikipedia.org/wiki/Civil_law_(legal_system)http://en.wikipedia.org/wiki/Jurisdictionhttp://en.wikipedia.org/wiki/Canon_lawhttp://en.wikipedia.org/wiki/Socialist_lawhttp://en.wikipedia.org/wiki/Socialist_lawhttp://en.wikipedia.org/wiki/Common_lawhttp://en.wikipedia.org/wiki/Binding_precedenthttp://en.wikipedia.org/wiki/Precedenthttp://en.wikipedia.org/wiki/Criminal_lawhttp://en.wikipedia.org/wiki/Social_orderhttp://en.wikipedia.org/wiki/Guilt_(law)http://en.wikipedia.org/wiki/Civil_law_(common_law)http://en.wikipedia.org/wiki/Lawsuitshttp://en.wikipedia.org/wiki/Legal_remedyhttp://en.wikipedia.org/wiki/Damageshttp://en.wikipedia.org/wiki/Litiganthttp://en.wikipedia.org/wiki/Contract_lawhttp://en.wikipedia.org/wiki/Derivative_(finance)http://en.wikipedia.org/wiki/Property_lawhttp://en.wikipedia.org/wiki/Personal_propertyhttp://en.wikipedia.org/wiki/Real_propertyhttp://en.wikipedia.org/wiki/Trust_lawhttp://en.wikipedia.org/wiki/Tort_lawhttp://en.wikipedia.org/wiki/Harm_principlehttp://en.wikipedia.org/wiki/Constitutional_lawhttp://en.wikipedia.org/wiki/Administrative_lawhttp://en.wikipedia.org/wiki/International_lawhttp://en.wikipedia.org/wiki/Legal_professionhttp://en.wikipedia.org/wiki/Civil_societyhttp://en.wikipedia.org/wiki/Civil_societyhttp://en.wikipedia.org/wiki/Legal_historyhttp://en.wikipedia.org/wiki/Philosophyhttp://en.wikipedia.org/wiki/Economic_analysis_of_lawhttp://en.wikipedia.org/wiki/Economic_analysis_of_lawhttp://en.wikipedia.org/wiki/Sociology_of_lawhttp://en.wikipedia.org/wiki/Justicehttp://en.wikipedia.org/wiki/Equality_before_the_lawhttp://en.wikipedia.org/wiki/Anatole_Francehttp://en.wikipedia.org/wiki/Anatole_Francehttp://en.wikipedia.org/wiki/Rich_and_poor_alikehttp://en.wikipedia.org/wiki/Common_lawhttp://en.wikipedia.org/wiki/Contracthttp://en.wikipedia.org/wiki/Constitutionhttp://en.wikipedia.org/wiki/Rightshttp://en.wikipedia.org/wiki/Politicshttp://en.wikipedia.org/wiki/Economicshttp://en.wikipedia.org/wiki/Societyhttp://en.wikipedia.org/wiki/Peoplehttp://en.wikipedia.org/wiki/Civil_law_(legal_system)http://en.wikipedia.org/wiki/Jurisdictionhttp://en.wikipedia.org/wiki/Canon_lawhttp://en.wikipedia.org/wiki/Socialist_lawhttp://en.wikipedia.org/wiki/Socialist_lawhttp://en.wikipedia.org/wiki/Common_lawhttp://en.wikipedia.org/wiki/Binding_precedenthttp://en.wikipedia.org/wiki/Precedenthttp://en.wikipedia.org/wiki/Criminal_lawhttp://en.wikipedia.org/wiki/Social_orderhttp://en.wikipedia.org/wiki/Guilt_(law)http://en.wikipedia.org/wiki/Civil_law_(common_law)http://en.wikipedia.org/wiki/Lawsuitshttp://en.wikipedia.org/wiki/Legal_remedyhttp://en.wikipedia.org/wiki/Damageshttp://en.wikipedia.org/wiki/Litiganthttp://en.wikipedia.org/wiki/Contract_lawhttp://en.wikipedia.org/wiki/Derivative_(finance)http://en.wikipedia.org/wiki/Property_lawhttp://en.wikipedia.org/wiki/Personal_propertyhttp://en.wikipedia.org/wiki/Real_propertyhttp://en.wikipedia.org/wiki/Trust_lawhttp://en.wikipedia.org/wiki/Tort_lawhttp://en.wikipedia.org/wiki/Harm_principlehttp://en.wikipedia.org/wiki/Constitutional_lawhttp://en.wikipedia.org/wiki/Administrative_lawhttp://en.wikipedia.org/wiki/International_lawhttp://en.wikipedia.org/wiki/Legal_professionhttp://en.wikipedia.org/wiki/Civil_societyhttp://en.wikipedia.org/wiki/Civil_societyhttp://en.wikipedia.org/wiki/Legal_historyhttp://en.wikipedia.org/wiki/Philosophyhttp://en.wikipedia.org/wiki/Economic_analysis_of_lawhttp://en.wikipedia.org/wiki/Economic_analysis_of_lawhttp://en.wikipedia.org/wiki/Sociology_of_lawhttp://en.wikipedia.org/wiki/Justicehttp://en.wikipedia.org/wiki/Equality_before_the_lawhttp://en.wikipedia.org/wiki/Anatole_Francehttp://en.wikipedia.org/wiki/Anatole_Francehttp://en.wikipedia.org/wiki/Rich_and_poor_alike


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the Breekphilosopher)ristotledeclared$ ?The rule of lawis better than therule of any

individual.?Mikhail 0akuninsaid ?)ll law has for its object to confirm and e-alt into a system

the e-ploitation of the workers by a ruling class?.6icero said ?more law$ less justice?.Mar-ist

doctrine asserts that law will not be required once the state has withered away.

httpCCworldtracker.orgCmediaClibraryC6ollegeD3A0ooksC6ambridgeD3A:niversity

D3A%ressCA@3(E=F=E>.6ambridge.:niversity.%ress.)n.#ntroduction.to.9aw.Gec.3AAE.pdf

1.2 Where does law come from?

:nderstanding the law means understanding the various kinds of rules that guide our conduct

and how society is empowered to enforce them$whether through criminal prosecution or civillawsuits.The rules themselves may be found in a number of placesconstitutions$statues passed

by legislative bodies$rules of administrative agencies$common law and court opinions.

The Constitution

The head of state in )ustralia is the Hueen of )ustralia$ who is also the Hueen of Ingland. The

Bovernor/Beneral and state/based governors are her representatives. )ll legislationpassed by the

parliaments must be signed by the Hueens representative before it comes into operation. The

parliament has authority because the Hueen says it has authority over her subjects.

Many people think this is no longer appropriate for a modern country like )ustralia. 2owever$ a

referendum to remove the role of the monarchy ,the Hueen and become a republic failed when

put to the test in (===. 8upporters of a republic have promised to continue with their efforts in

the future.

The e-tent of the power of )ustralian parliaments to make laws is detailed in the 6ommonwealth

of )ustralia 6onstitution )ct (=AA ,the ConstitutionK and state constitutions$ for e-ample

the 6onstitution )ct (=F@ . The 6ommonwealth and state parliaments have different powers$

which are listed in their separate constitutions. The powers of the 6ommonwealth Bovernment

are listed in section @( of the 6onstitution and include defence$ ta-ation$ marriage$ trade and

commerce$ immigration and lighthouses.

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http://en.wikipedia.org/wiki/Ancient_Greecehttp://en.wikipedia.org/wiki/Aristotlehttp://en.wikipedia.org/wiki/Rule_of_lawhttp://en.wikipedia.org/wiki/Absolute_monarchyhttp://en.wikipedia.org/wiki/Absolute_monarchyhttp://en.wikipedia.org/wiki/Mikhail_Bakuninhttp://en.wikipedia.org/wiki/Cicerohttp://en.wikipedia.org/wiki/Withering_away_of_the_statehttp://worldtracker.org/media/library/College%20Books/Cambridge%20University%20Press/0521697964.Cambridge.University.Press.An.Introduction.to.Law.Dec.2006.pdfhttp://worldtracker.org/media/library/College%20Books/Cambridge%20University%20Press/0521697964.Cambridge.University.Press.An.Introduction.to.Law.Dec.2006.pdfhttp://www.lawhandbook.org.au/handbook/go01.php#idp135777232http://www.austlii.edu.au/au/legis/vic/consol_act/ca1975188/http://www.lawhandbook.org.au/handbook/go01.php#idp135800544http://en.wikipedia.org/wiki/Ancient_Greecehttp://en.wikipedia.org/wiki/Aristotlehttp://en.wikipedia.org/wiki/Rule_of_lawhttp://en.wikipedia.org/wiki/Absolute_monarchyhttp://en.wikipedia.org/wiki/Absolute_monarchyhttp://en.wikipedia.org/wiki/Mikhail_Bakuninhttp://en.wikipedia.org/wiki/Cicerohttp://en.wikipedia.org/wiki/Withering_away_of_the_statehttp://worldtracker.org/media/library/College%20Books/Cambridge%20University%20Press/0521697964.Cambridge.University.Press.An.Introduction.to.Law.Dec.2006.pdfhttp://worldtracker.org/media/library/College%20Books/Cambridge%20University%20Press/0521697964.Cambridge.University.Press.An.Introduction.to.Law.Dec.2006.pdfhttp://www.lawhandbook.org.au/handbook/go01.php#idp135777232http://www.austlii.edu.au/au/legis/vic/consol_act/ca1975188/http://www.lawhandbook.org.au/handbook/go01.php#idp135800544


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#f a parliament makes a law ,)ct that is outside the powers set out in the relevant constitution

then the validity of that law can be challenged. 8ections$ whole parts$ or a complete )ct can be

declared invalid if the courts find it unconstitutionalL that is$ the 6onstitution did not give

parliament the power to make that law.

!here an )ct is made by a state parliament and covers subjects over which the 6ommonwealth

%arliament has e-clusive power$ the state )ct is said to be inconsistent. The 6ommonwealth )ct

applies and the state )ct$ or at least the part of it that is inconsistent$ is of no effect ,as in the

Tasmanian dam e-ample above.

Gisputes about interpreting the 6onstitution can only be resolved in the 2igh 6ourt.

The state parliaments have power to pass )cts on all areas not given to the 6ommonwealth in its

6onstitution$ as well as on some subjects that are in both the state and 6ommonwealth

constitutions. )n area where power has been left to state parliaments is trade and commerce

within a stateL in contrast$ the 6ommonwealth %arliament has been given power to make laws

about trade between the states.

Gespite these apparently sharp differences in their powers$ the state and 6ommonwealth

governments are often involved in the same projects. Their degree of involvement variesaccording to their constitutional power$ their political will and the amount of money involved.

Statutes

) statuteis a formal written enactment of a legislativeauthority that governs a state$ city$

or country. Typically$ statutes command or prohibit something$ or declare policy.The word is

often used to distinguishlawmade by legislativebodies fromcase law$ decided by courts$

andregulationsissued by government agencies.8tatutes are sometimes referred to

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as legislationor ?black letter law.? )s a source oflaw$ statutes are consideredprimary

authority,as opposed to secondary authority.

#deally all statutes must be in harmony with the fundamental law of the land ,constitutional.

This word is used in contradistinction to thecommon law. 8tatutes acquire their force from the

time of their passage$ however unless otherwise provided. 8tatutes are of several kindsL namely$

%ublic or private. Geclaratory or remedial. Temporary or perpetual. ) temporary statute is one

which is limited in its duration at the time of its enactment. #t continues in force until the time of

its limitation has e-pired$ unless sooner repealed. ) perpetual statute is one for the continuance

of which there is no limited time$ although it may not be e-pressly declared to be so. #f$ however$

a statute which did not itself contain any limitation is to be governed by another which is

temporary only$ the former will also be temporary and dependent upon the e-istence of the latter.

0efore a statute becomes lawin some countries$ it must be agreed upon by the

highest e-ecutivein thegovernment$ and finally published as part of a code. #n many countries$

statutes are organized in topical arrangements ,or?codified? within publications called codes$

such as the :nited 8tates 6ode. #n many nations statutory lawis distinguished from and

subordinate to constitutional law.

Administrative law

Administrative lawis the body of lawthat governs the activities ofadministrative

agencies of government.Bovernment agencyaction can include rulemaking$adjudication$ or

the enforcementof a specific regulatoryagenda. )dministrative law is considered a branch

ofpublic law. )s a body of law$ administrative law deals with the decision/making of

administrative units of government ,for e-ample$ tribunals$boardsor commissions that are part

of a nationalregulatory scheme in such areas aspolice law$international trade$ manufacturing$

the environment$ta-ation$broadcasting$immigrationand transport. )dministrative law e-panded

greatly during the twentieth century$ as legislative bodies worldwide created more government

agencies to regulate the increasingly comple- social$ economic and political spheres of human

interaction.

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http://en.wikipedia.org/wiki/Legislationhttp://en.wikipedia.org/wiki/Black_letter_lawhttp://en.wikipedia.org/wiki/Lawhttp://en.wikipedia.org/wiki/Primary_authorityhttp://en.wikipedia.org/wiki/Primary_authorityhttp://en.wikipedia.org/wiki/Secondary_authorityhttp://en.wikipedia.org/wiki/Fundamental_lawhttp://en.wikipedia.org/wiki/Common_lawhttp://en.wikipedia.org/wiki/Lawhttp://en.wikipedia.org/wiki/Executive_branchhttp://en.wikipedia.org/wiki/Governmenthttp://en.wikipedia.org/wiki/Code_(law)http://en.wikipedia.org/wiki/Codification_(law)http://en.wikipedia.org/wiki/Code_(law)http://en.wikipedia.org/wiki/United_States_Codehttp://en.wikipedia.org/wiki/Statutory_lawhttp://en.wikipedia.org/wiki/Constitutional_lawhttp://en.wikipedia.org/wiki/Lawhttp://en.wikipedia.org/wiki/Government_agencyhttp://en.wikipedia.org/wiki/Government_agencyhttp://en.wikipedia.org/wiki/Governmenthttp://en.wikipedia.org/wiki/Government_agencyhttp://en.wikipedia.org/wiki/Rulemakinghttp://en.wikipedia.org/wiki/Adjudicationhttp://en.wikipedia.org/wiki/Enforcementhttp://en.wikipedia.org/wiki/Regulationhttp://en.wikipedia.org/wiki/Public_lawhttp://en.wikipedia.org/wiki/Tribunalhttp://en.wikipedia.org/wiki/Board_of_directorshttp://en.wikipedia.org/wiki/Government_agencyhttp://en.wikipedia.org/wiki/Regulationhttp://en.wikipedia.org/wiki/Police_lawhttp://en.wikipedia.org/wiki/International_tradehttp://en.wikipedia.org/wiki/Manufacturinghttp://en.wikipedia.org/wiki/Environment_(biophysical)http://en.wikipedia.org/wiki/Taxationhttp://en.wikipedia.org/wiki/Broadcastinghttp://en.wikipedia.org/wiki/Immigrationhttp://en.wikipedia.org/wiki/Transporthttp://en.wikipedia.org/wiki/Government_agencyhttp://en.wikipedia.org/wiki/Government_agencyhttp://en.wikipedia.org/wiki/Legislationhttp://en.wikipedia.org/wiki/Black_letter_lawhttp://en.wikipedia.org/wiki/Lawhttp://en.wikipedia.org/wiki/Primary_authorityhttp://en.wikipedia.org/wiki/Primary_authorityhttp://en.wikipedia.org/wiki/Secondary_authorityhttp://en.wikipedia.org/wiki/Fundamental_lawhttp://en.wikipedia.org/wiki/Common_lawhttp://en.wikipedia.org/wiki/Lawhttp://en.wikipedia.org/wiki/Executive_branchhttp://en.wikipedia.org/wiki/Governmenthttp://en.wikipedia.org/wiki/Code_(law)http://en.wikipedia.org/wiki/Codification_(law)http://en.wikipedia.org/wiki/Code_(law)http://en.wikipedia.org/wiki/United_States_Codehttp://en.wikipedia.org/wiki/Statutory_lawhttp://en.wikipedia.org/wiki/Constitutional_lawhttp://en.wikipedia.org/wiki/Lawhttp://en.wikipedia.org/wiki/Government_agencyhttp://en.wikipedia.org/wiki/Government_agencyhttp://en.wikipedia.org/wiki/Governmenthttp://en.wikipedia.org/wiki/Government_agencyhttp://en.wikipedia.org/wiki/Rulemakinghttp://en.wikipedia.org/wiki/Adjudicationhttp://en.wikipedia.org/wiki/Enforcementhttp://en.wikipedia.org/wiki/Regulationhttp://en.wikipedia.org/wiki/Public_lawhttp://en.wikipedia.org/wiki/Tribunalhttp://en.wikipedia.org/wiki/Board_of_directorshttp://en.wikipedia.org/wiki/Government_agencyhttp://en.wikipedia.org/wiki/Regulationhttp://en.wikipedia.org/wiki/Police_lawhttp://en.wikipedia.org/wiki/International_tradehttp://en.wikipedia.org/wiki/Manufacturinghttp://en.wikipedia.org/wiki/Environment_(biophysical)http://en.wikipedia.org/wiki/Taxationhttp://en.wikipedia.org/wiki/Broadcastinghttp://en.wikipedia.org/wiki/Immigrationhttp://en.wikipedia.org/wiki/Transporthttp://en.wikipedia.org/wiki/Government_agencyhttp://en.wikipedia.org/wiki/Government_agency


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6ivil law countries often have specialized courts$administrative courts$ that review these

decisions. The plurality of administrative decisions contested in administrative courts are related

to ta-ation.

httpCCen.wikipedia.orgCwikiC)dministrativelaw

Common Law

6ommon law is the oldest form of law$derived from usages and customs of ancient times.#t is the

backdrop against which most of our laws have been$and will be$created.0asically$when we speak

of common law in the united 8tates$we are reffering to a collection of legal principles and rules

developed in Inglish courts and legislative bodies over many centuries . Common law$ also

known as case lawor precedent$ is law developed byjudgesthroughdecisionsof courtsand

similar tribunals rather than through legislative statutesor e-ecutive branch action. ) ?common

law system? is a legal systemthat gives great precedential weight to common law$ on the

principle that it is unfair to treat similar facts differently on different occasions.The body

ofprecedentis called ?common law? and it binds future decisions. #n cases where the parties

disagree on what the law is$ an idealized common law court looks to pastprecedentialdecisions

of relevant courts. #f a similar dispute has been resolved in the past$ the court isboundto follow

the reasoning used in the prior decision ,this principle is known asstare decisis. #f$ however$ the

court finds that the current dispute is fundamentally distinct from all previous cases ,called a

?matter of first impression?$ judges have the authority and duty to make law by

creatingprecedent.Thereafter$ the new decision becomes precedent$ and will bind future courts.

#n practice$ common law systems are considerably more complicated than the idealized system

described above. The decisions of a court are binding only in a particularjurisdiction$ and even

within a given jurisdiction$ some courts have more power than others. 1or e-ample$ in most

jurisdictions$ decisions byappellate courtsare binding on lower courts in the same jurisdiction

and on future decisions of the same appellate court$ but decisions of lower courts are only non/

binding persuasive authority. #nteractions between common law$ constitutional law$statutory

lawand regulatory lawalso give rise to considerable comple-ity. 2owever stare decisis$ the

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principle that similar cases should be decided according to consistent principled rules so that they

will reach similar results$ lies at the heart of all common law systems.

1.3. Civil law and criminal law

Criminal lawis concerned with protecting the citizens of a community from actions that disturb

the social order of that community$ such as murder and assault. This body of law provides a set

of rules for peaceful$ safe$ and orderly living. %eople that break these laws can be prosecuted$

and if found guilty$ could be fined or sent to prison$ or both. 0ecause criminal law deals with

protecting the community as a whole$ the government is empowered to enforce it.

#n a criminal case$ the federal$ state$ or municipal government brings the action in the name of its

citizens against a defendant who has been accused of committing a crime.

Civil Law

) civil case is one in which a person who has a complaint can bring a legal action to protect his

interests or collect monetary damages. 6ivil law deals with the rights and duties of one

individual to another. The person claiming relief is called a plaintiff$ petitioner$ or complainant.

The person against whom relief is sought is called a defendant or respondent. #n a civil case$ it is

the individual who feels wronged or injured ,the plaintiff who decides whether to file a civil

suit. !hen damages are sought$ the plaintiff decides how much to demand in damages$ although

the judge or jury decides whether and how much a plaintiff can recover. #n a civil case$ the

plaintiff cannot seek to have a defendant jailed unless the defendant has infringed a court order.,0ruce 6antrell$ 3AA3$ p.3$@

6ivil law and criminal law are two broad and separate entities of law with separate sets of laws

and punishments. )ccording to !illiam Beldart$ Introduction to English Law (>E ,G.6.M.

Nardley ed.$ =th ed. (=$

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?The difference between civil law and criminal law turns on the difference between two different

objects which law seeks to pursue / redress or punishment. The object of civil law is the redress

of wrongs by compelling compensation or restitution the wrongdoer is not punishedL he only

suffers so much harm as is necessary to make good the wrong he has done. The person who has

suffered gets a definite benefit from the law$ or at least he avoids a loss. 4n the other hand$ in the

case of crimes$ the main object of the law is to punish the wrongdoerL to give him and others a

strong inducement not to commit same or similar crimes$ to reform him if possible and perhaps

to satisfy the public sense that wrongdoing ought to meet with retribution.K

I-amples of criminal law include cases of burglary$ assault$ battery and cases of murder. 6ivil

law applies to cases of negligence or malpractice$ for e-ample.

Civil law Criminal law

Definition 6ivil law deals with disputes

between individuals$

organizations$ or between the

two$ in which compensation is

awarded the victim

6riminal law is the body of

law the deals with crime and

the legal punishment of

criminal offences

Burden of proof %reponderance of evidence

The burden of proof falls on

the plaintiff

0eyond a reasonable doubtK

burden of proof is always on

the state C government

Examples 9andlord C tenant disputes$

divorce proceedings$ child

custody proceedings$ property

disputes$ personal injury

Theft$ assault$ robbery$

trafficking uncontrolled

substances$ murder.

Type of punishment 6ivil litigation usually

involves some type of

compensation for injuries or

damages as well as disposition

of property and other disputes

) guilty defendant is punished

by incarceration and C or fines$

or in e-ceptional cases the

death penalty. 6rimes are

divided in two broad classes

felonies and misdemeanors

Case field y %rivate party Bovernment

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case$ or ?crossing the @( percent line?$ because the plaintiff must prove the defendant by more

than half the evidence.

#n some cases$ such as those involving misrepresentation$ fraud$ intentional infliction of

emotional distress$ and probate contests$ the plaintiff must prove his or her case by clear and

convincing evidence$ which is a higher standard and more difficult to meet that a mere

preponderance.

#n contrast with criminal lawsuit the prosecutor must prove the case beyond a reasonable doubt.

Meaning that judge or jury must believe the defendant;s guilt without significant reservations.

This burden of proof is much more difficult than either of the proof levels required in civil cases.

This heavier burden on the government e-ists to protect defendants from overzealous prosecutors

who might succeed in convicting innocent individuals with less evidence if the proof

requirements were easier to satisfy.

,httpCCwww.dopapers.comCpdfCCriminal_Law_vs_Civil_Law.pdf

Chapter #

The nature$purpose and function of

Criminal Law

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2.1 What Criminal Law means?

6riminal law involves prosecution by the government of a person for an act that has been

classified as a crime. 6ivil cases$on the other hand$ involve individuals and organizations

seeking to resolve legal disputes. #n a criminal case$ the state$ through a prosecutor$ initiates the

suit$ while in a civil case the victim brings the suit. %ersons convicted of a crime may be

incarcerated$ fined$ or both. 2owever$ persons found liable in a civil case may only have to give

up property or pay money$ but are not incarcerated.

) ?crime? is any act or omission ,of an act in violation of a public law forbidding or

commanding it. Though there are somecommon lawcrimes$ most crimes in the :nited 8tates are

established by local$ state$ and federal governments. 6riminal laws vary significantly from state

to state. There is$ however$ a Model %enal 6ode,M%6 which serves as a good starting place to

gain an understanding of the basic structure of criminal liability.

6rimes include both felonies ,more serious offenses // like murder or rape

andmisdemeanors,less serious offenses // like petty theft or jaywalking. 1elonies are usually

crimes punishable by imprisonment of a year or more$ while misdemeanors are crimes

punishable by less than a year. 2owever$ no act is a crime if it has not been previously

established as such either by statute or common law. *ecently$ the list of 1ederal crimes dealing

with activities e-tending beyond state boundaries or having special impact on federal operations$

has grown.

)ll statutes describing criminal behavior can be broken down into their various elements. Most

crimes ,with the e-ception of strict/liability crimes consist of two elements an act$ or ?actus

reus$? and a mental state$ or ?mens rea?. %rosecutors have to prove each and every element of the

crime to yield a conviction. 1urthermore$ the prosecutor must persuade the jury or judge ?beyond

a reasonable doubt? of every fact necessary to constitute the crime charged. #n civil cases$ the

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plaintiff needs to show a defendant is liable only by a ?preponderance of the evidence$? or more

than @AD.

The %ature of Criminal Law

)re there common characteristics of acts that are labeled as crimes" 2ow do we define a crime"

The

easy answer is that a crime is whatever the law declares to be a criminal offense and punishes

with

a penalty. The difficulty with this approach is that not all criminal convictions result in a fine or

imprisonment. *ather than punishing a defendant$ the judge may merely warn him or her not to

repeat the criminal act. Most commentators stress that the important feature of a crime is that it is

an act that is officially condemned by the community and carries a sense of shame and

humiliation.

%rofessor 2enry M. 2art$ Jr. defines crime as conduct which$ if . . . shown to have taken placeK

will

result in the formal and solemn pronouncement of the moral condemnation of the community.K

The central point of %rofessor 2artOs definitions is that a crime is subject to formal condemnation

by a judge and jury representing the people in a court of law. This distinguishes a crime from

acts most people would find objectionable that typically are not subject to state prosecution and

official punishment. !e might$ for instance$ criticize someone who cheats on his or her spouse$

but we generally leave the solution to the individuals involved. 4ther matters are left to

institutions

to settleL schools generally discipline students who cheat or disrupt classes$ but this rarely results

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in a criminal charge. %rofessional baseball$ basketball$ and football leagues have their own

private

procedures for disciplining players. Most states leave the decision whether to recycle trash to the

individual and look to peer pressure to enforce this obligation.

Criminal and Civil Law

2ow does the criminal law differ from the civil law" The civil law is that branch of the law that

protects the individual rather than the public interest. ) legal action for a civil wrong is brought

by an individual rather than by a state prosecutor.Nou may sue a mechanic who breaches a

contractto repair your car or bring an action against a landlord who fails to adequately heat your

apartment.

The injury is primarily to you as an individual$ and there is relatively little harm to society. )

mechanic who intentionally misleads and harms a number of innocent consumers$ however$ may

find himself or herself charged with criminal fraud. 6ivil and criminal actions are characterized

by different legal procedures. 1or instance$conviction of a crime requires the high standard of

proof beyond a reasonable doubt$although responsability for a civil wrong is established by the

much lower standard of proof by a preponderance of the evidence or roughly fifty/one percent

certainty. The high standard of proof in criminal cases reflects the fact that a criminal conviction

may result in a loss of liberty and significant damage to an individuals reputation and standing

in the community. The famous eighteenth/century Inglish jurist !illiam 0lackstone summarizes

the distinction between civil and criminal law by observing that civil injuries are an

infringement . . . of the civil rights which belong to individuals . . . public wrongs$ or crimes . . .

are a breach and violation of the public rights and duties$ due to the whole community . . . in its

social aggregate capacity.K 0lackstone illustrates s this difference by pointing out that society has

little interest in whether he sues a neighbor or emerges victorious in a land dispute. 4n the other

hand$ society has a substantial investment in the arrest$prosecution$and conviction of individuals

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responsible for espionage$murder$and robbery. The difference between a civil and criminal action

is not always clear$ particularly with regard to an action for a tort$ which is an injury to a person

or to his or her property. . 6onsider the drunken driver who runs a red light and hits your car. The

driver may be sued in tort for negligently damaging you and your property as well as criminally

prosecuted for reckless driving. The purpose of the civil action is to compensate you with money

for the damage to your car and for the physical and emotional injuries you have suffered. #n

contrast$ the criminal action punishes the driver for endangering society. 6ivil liability is based

on a preponderance of the evidence standard$ while a criminal conviction carries a possible loss

of liberty and is based on the higher standard of guilt beyond a reasonable doubt. . Nou may

recall that former football star 4.J. 8impson was acquitted of murdering Picole 0rown 8impson

and *on Boldman but was later found guilty of wrongful death in a civil court and ordered to

compensate the victims families in the amount of Q77.@ million. The distinction between

criminal and civil law proved immensely significant for Ransas inmate 9eroy 2endricks. .

2endricks was about to be released after serving ten years in prison for molesting two thirteen/

year/old boys. This was only the latest episode in 2endrickss almost thirty/year history of

indecent e-posure and molestation of young children. . 2endricks freely conceded that when not

confined$ the only way to control his se-ual urge was to die.K

:pon learning that 2endricks was about to be released$ Ransas authorities invoked the 8e-ually

Siolent %redator )ct of (==>$ which authorized the institutional confinement of individuals who$

due to a mental abnormalityK K or a personality disorder$K K are likely to engage in predatory

acts of se-ual violence.K 1ollowing a hearing$ a jury found 2endricks to be a se-ual predator.K

The :.8. 8upreme 6ourt ruled that 2endrickss continued commitment was a civil rather than

criminal penalty$ and that 2endricks was not being unconstitutionally punished twice for the

same criminal act of molestation. The 6ourt e-plained that the purpose of the commitment

procedure was to detain and to treat 2endricks in order to prevent him from m harming others in

the future rather than to punish him. Go you think that the decision of the :.8. 8upreme 6ourtmakes sense"

The "urpose of Criminal Law

!e have seen that the criminal law primarily protects the interests of society$ and the civil law

protects the interests of the individual. The primary purpose or function of the criminal law is to

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help maintain social order and stability. The Te-as criminal code proclaims that the purpose of

criminal law is to establish a system prohibitions$ penalties$ and correctional measures to deal

with conduct that unjustifiably and ine-cusably causes or threatens harm to those individual or

public interests for which state protection is appropriate.K(3 The Pew Nork criminal code sets

out the basic purposes of criminal law as follows

&arm.To prohibit conduct that unjustifiably or ine-cusably causes or threatens substantial

harm to individuals as well as to society

'arnin(.To warn people both of conduct that is subject to criminal punishment and of the

severity of the punishment

Definition.To define the act and intent that is required for each offense

Seriousness.To distinguish between serious and minor offenses and to assign the appropriate

punishments

"unishment. To impose punishments that satisfy the demands for revenge$ rehabilitation$ and

deterrence of future crimes

)ictims. To insure that the victim$ the victims family$ and the community interests are

represented at trial and in imposing punishments.

The ne-t step is to understand the characteristics of a criminal act.

The "rinciples of Criminal Law

The study of substantive criminal law involves an analysis of the definition of specific crimes

,specific part and of the general principles that apply to all crimes ,general part$ such as thedefense of insanity. #n our study$ we will first review the general part of criminal law and then

look at specific offenses. 8ubstantive criminal law is distinguished from criminal procedure.

6riminal procedure involves a study of the legal standards governing the detection$ investigation$

and prosecution of crime and includes areas such as interrogations$ search and

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seizure$wiretapping $and the trial process.6riminal procedure is concerned with how the law is

enforcedKLcriminal law involves what law is enforcedK.

%rofessors Jerome 2all and !ayne *. 9a1ave identify the basic principles that compose the

general part of the criminal law. Think of the general part of the criminal law as the building

blocks that are used to construct specific offenses such as rape$ murder$ and robbery.

Criminal Act.) crime involves an act or failure to act. Nou cannot be punished for bad

thoughts. ) criminal act is called actus reus.

Criminal *ntent. ) crime requires a criminal intent or mens rea. 6riminal punishment is

ordinarily directed at individuals who intentionally$ knowingly$ recklessly$ or negligently harm

other individuals or property.

Concurrence. The criminal act and criminal intent must coe-ist or accompany one another.

Causation.The defendants act must cause the harm required for criminal guilt$ death in the

case of homicide$ and the burning of a home or other structure in the case of arson.

+esponsiility. #ndividuals must receive reasonable notice of the acts that are criminal so as to

make a decision to obey or to violate the law. #n other words$ the required criminal act and

criminal intent must be clearly stated in a statute. This concept is captured by the 9atin phrase

nullum crimen sine lege$ nulla poena sin lege ,no crime without law$ no punishment without

law.

Defenses.6riminal guilt is not imposed on an individual who is able to demonstrate that his or

her criminal act is justified ,benefits society or e-cused ,the individual suffered from a disability

that prevented him or her from forming a criminal intent.

#.# ,-ectives of criminal law

6riminal law is distinctive for the uniquely serious potential consequences or sanctions for

failure to abide by its rules. Ivery crime is composed of criminal elements. 6apital punishment

may be imposed in some jurisdictions for the most serious crimes. %hysical or corporal

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punishment may be imposed such as whipping or caning$ although these punishments are

prohibited in much of the world. #ndividuals may be incarcerated in prison or jail in a variety of

conditions depending on the jurisdiction. 6onfinement may be solitary. 9ength of incarceration

may vary from a day to life. Bovernment supervision may be imposed$ including house arrest$

and convicts may be required to conform to particularized guidelines as part of a parole or

probation regimen. 1ines also may be imposed$ seizing money or property from a person

convicted of a crime.

1ive objectives are widely accepted for enforcement of the criminal law by punishments

retribution$ deterrence$ incapacitation$ rehabilitation and restoration. Jurisdictions differ on the

value to be placed on each.

+etriution + 6riminals ought to suffer in some way. This is the most widely seen goal.

6riminals have taken improper advantage$ or inflicted unfair detriment$ upon others and

consequently$ the criminal law will put criminals at some unpleasant disadvantage to ?balance

the scales.? %eople submit to the law to receive the right not to be murdered and if people

contravene these laws$ they surrender the rights granted to them by the law. Thus$ one who

murders may be e-ecuted himself. ) related theory includes the idea of ?righting the balance.?

Deterrence+ #ndividual deterrence is aimed toward the specific offender. The aim is to impose a

sufficient penalty to discourage the offender from criminal behavior. Beneral deterrence aims at

society at large. 0y imposing a penalty on those who commit offenses$ other individuals are

discouraged from committing those offenses.

*ncapacitation+ Gesigned simply to keep criminals away from society so that the public is

protected from their misconduct. This is often achieved through prison sentences today. The

death penalty or banishment have served the same purpose.

+ehailitation + )ims at transforming an offender into a valuable member of society. #tsprimary goal is to prevent further offense by convincing the offender that their conduct was

wrong.

R$0tor(t!on This is a victim-oriented theory of !nishment" The #oa$ is to reair%

thro!#h state a!thority% any in&!ry in'icted !on the victim (y the offender" )or

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e*am$e% one +ho em(e,,$es +i$$ (e re!ired to reay the amo!nt imroer$y

ac!ired" .estoration is common$y com(ined +ith other main #oa$s of crimina$

&!stice and is c$ose$y re$ated to concets in the civi$ $a+% i"e"% ret!rnin# the victim to

his or her ori#ina$ osition (efore the in&!ry"

#. *nternational criminal law

#nternational criminal law is a body of international law designed to prohibit certain categories of

conduct commonly viewed as serious atrocities and to make perpetrators of such conduct

criminally accountable for their perpetration. %rincipally$ it deals with genocide$ war crimes$

crimes against humanity$ as well as the crime of aggression. This article also discusses crimes

against international law$ which may not be part of the body of international criminal law.

?6lassical? international law governs the relationships$ rights$ and responsibilities of states.

6riminal law generally deals with prohibitions addressed to individuals$ and penal sanctions for

violation of those prohibition imposed by individual states. #nternational criminal law comprises

elements of both in that although its sources are those of international law$ its consequences are

penal sanctions imposed on individuals. 8ome precedents in international criminal law can be

found in the time before !orld !ar #. 2owever$ it was only after the war that a truly

international crime tribunal was envisaged to try perpetrators of crimes committed in this period.

Thus$ the Treaty of Sersailles stated that an international tribunal was to be set up to try !ilhelm

## of Bermany. #n the event however$ the Raiser was granted asylum in the Petherlands. )fter

!orld !ar ##$ the )llied powers set up an international tribunal to try not only war crimes$ but

crimes against humanity committed under the Pazi regime. The Puremberg Tribunal held its first

session in (=>@ and pronounced judgments on 7A 8eptember C ( 4ctober (=>E. ) similar tribunal

was established for Japanese war crimes ,The #nternational Military Tribunal for the 1ar Iast. #t

operated from (=>E to (=>. The #nternational

9aw 6ommission had commenced preparatory work for the establishment of a permanent

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#nternational 6riminal 6ourt in (==7L in (==


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)part from these institutions$ some ?hybrid? courts and tribunals e-istUjudicial bodies with both

international and national judges

8pecial 6ourt for 8ierra 9eone$ ,investigating the crimes committed the 8ierra 9eone 6ivil !ar

I-traordinary 6hambers in the 6ourts of 6ambodia$ ,investigating the crimes of the *ed Rhmer

era

8pecial Tribunal for 9ebanon$ ,investigating the assassination of *afik 2ariri

The !ar 6rimes 6ourt at Rosovo

*nternational Criminal Court

The #nternational 6riminal 6ourt ,1rench 6our %Vnale #nternationaleL commonly referred to as

the #66 or #66t is a permanent tribunal to prosecute individuals for genocide$ crimes against

humanity$ war crimes$ and the crime of aggression ,although it cannot currently e-ercise

jurisdiction over the crime of aggression.

The court;s creation perhaps constitutes the most significant reform of international law since

(=>@. #t gives authority to the two bodies of international law that deal with treatment of

individuals human rights and humanitarian law.

#t came into being on July ($ 3AA3Uthe date its founding treaty$ the *ome 8tatute of the

#nternational 6riminal 6ourt$ entered into forceUand it can only prosecute crimes committed on

or after that date. The court;s official seat is in The 2ague$ Petherlands$ but its proceedings may

take place anywhere.

)s of )pril 3A(>$ (33 states are states parties to the 8tatute of the 6ourt$ including all of 8outh

)merica$ nearly all of Iurope$ most of 4ceania and roughly half the countries in )frica. )

further 7( countries$including *ussia$ have signed but not ratified the *ome 8tatute.The law of

treaties obliges these states to refrain from acts which would defeat the object and purposeK of

the treaty until they declare they do not intend to become a party to the treaty.Three of these

statesU#srael$ 8udan and the :nited 8tatesUhave informed the :P 8ecretary Beneral that they

no longer intend to become states parties and$ as such$ have no legal obligations arising from

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been completed four have had the charges against them dismissed$ one has had the charges

against him withdrawn$ and three have died before trial.

)s of March 3A(($ three trials against four people are underway two trials regarding the

situation in the Gemocratic *epublic of the 6ongo and one trial regarding the 6entral )frican

*epublic. )nother two people have been committed to a fourth trial in the situation of Garfur$

8udan. 4ne confirmation of charges hearing ,against one person in the situation of the G*

6ongo is to start in July 3A(( while two new cases ,against a total of si- persons in the situation

of Renya will begin with the suspects; first appearances in )pril 3A((.

#.Criminal Law Act 1/00

The Criminal Law Act 1/00,c.>@ is an )ct of the %arliament of the :nited Ringdom. Most of

it only applies to Ingland and !ales. #t creates the offence of conspiracy in Inglish law. #t also

created offences concerned with criminal trespass in premises$ made changes to sentencing$ and

created an offence of falsely reporting the e-istence of a bomb.

ain provisions

"art * 2 Conspiracy

#n criminal law$ a conspiracy is an agreement between two or more persons to commit a crime at

some time in the future. 6riminal law in some countries or for some conspiracies may require

that at least one overt act must also have been undertaken in furtherance of that agreement$ to

constitute an offense. There is no limit on the number participating in the conspiracy and$ in most

countries$ no requirement that any steps have been taken to put the plan into effect ,compare

attempts which require pro-imity to the full offence. 1or the purposes of concurrence$ the actus

reus is a continuing one and parties may join the plot later and incur joint liability and conspiracy

can be charged where the co/conspirators have been acquitted or cannot be traced. 1inally$

repentance by one or more parties does not affect liability but may reduce their sentence.

"art ** 3 ,ffences relatin( to enterin( and remainin( on property

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This %art implemented recommendations contained in the *eport on 6onspiracy and 6riminal

9aw *eform ,9aw 6om FE by the 9aw 6ommission. #n Ingland and !ales the 9aw

6ommission is an independent body set up by %arliament by the 9aw 6ommissions )ct (=E@ in

(=E@ to keep the law of Ingland and !ales under review and to recommend reforms. The

organisation is headed by a 6hairman ,currently 8ir Gavid 9loyd Jones$ a judge of the 6ourt of

)ppeal and four 9aw 6ommissioners. #t proposes changes to the law that will make the law

simpler$ more accessible$ fairer$ modern and more cost/effective. #t consults widely on its

proposals and in the light of the responses to public consultation$ it presents recommendations to

the :R %arliament that$ if legislated upon$ would implement its law reform recommendations.

Chapter

Civil law. The &istory and Development of

the Civil3Law System

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.1 The &istory and Development of the Civil3Law System

Civil law systems$ also called continentalorRomano-ermaniclegal systems$ are found on all

continents and cover about EAD of the world. They are based on concepts$ categories$ and rules

derived from *oman law$ with some influence of canon law$ sometimes largely supplemented ormodified by local custom or culture. The civil law tradition$ though secularized over the

centuries and placing more focus on individual freedom$ promotes cooperation between human

beings.

#n their technical$ narrow sense$ the words civil law describe the law that pertains to persons$

things$ and relationships that develop among them$ e-cluding not only criminal law but also

commercial law$ labor law$ etc. 6odification took place in most civil law countries$ with the

1rench Code civiland the Berman 0B0 being the most influential civil codes. To understand the

different civil/law systems as they e-ist today in Iuropean and 9atin )merican countries and

elsewhere$ one must necessarily begin inantiquity$ because the civil law$ in all of its variations$

has as its bedrock the written law and legal institutions of *ome. #ts very name derives from the

!us civile$ the civil law of the *oman *epublic and the *oman Impire.JuristsUthose persons

learned in the law$K or who could be described as legal e-pertsUmade fundamental

contributions to the development of the*oman legal system.The civil/law system had its origins

in the *oman *epublic$ before thebeginning of the Impire$ in the second century 0.6. 0y the

end of the *epublic$in 3F 0.6.$ a body of legal e-perts$ or jurists$ had gained prominence within

the legal system$ separate and apart from the courts of law ,the term jurist will be used

throughout this discussion to mean a legal e-pertK rather than only a judge. These jurists were

men from the upper classes of *oman society$ interested in the law and in providing counsel

about the law as a public service.They provided advice to parties to litigation$ to the lay judiciary

who presided attrials and judged the facts of a case$ and to legal magistrates who instructed the

lay judges on issues$ procedures$ and remedies available in particular cases. *oman jurists were

largely a product of the success of the *oman Impire.I-pansion of the Impire led to increased

trade with conquered territories andwith distant lands with which *ome came into contact. The

acquisition of territories brought new people into *ome and other cities of the Impire. These

persons did not come under the traditional jus civile applicable to *oman citizens$ but were

nevertheless important to the continued success of the Impire.

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8uch developments created the need for a private law regime to determine and guide

relationships between citizens and noncitizens. #n this atmosphere$ and to meet such needs$ the

*oman jurist came into being and created for himself a unique role$ primarily in the classical

period from (@A 0.6. to 3@A ).G.)nother reason for the development of the *oman jurist related

to the nature of the *oman judicial system and its method of disposition of cases. There were

two types of civil judges the magistrate$ or praetor$ and the judge for the trial$ or jude-. This

judiciary was nonprofessional. The praetors and judices seldom had any legal training. The

judicial capacity of the praetor$ elected for a one/year term$ was limited because his duties

consisted of conducting what a modern lawyer would call a pretrial hearing between prospective

litigants to de&ne the issues of the controversy. The praetors source of power was the control of

the remedies available to the litigants. The praetors edicts$ which were pronouncements about

the law$ became a primary source of private law$ legislation being only a secondary source. The

jude-$ on the other hand$ &lled the traditional role of judge during the trial. 2is appointment was

even more limited than that of the praetor. The jude- was selected on a strictly ad hoc basis by

the litigants for the purpose of presiding over their trial$ and then given authority by the praetor

to decide only that case. 0oth praetors and judices needed competent legal advice. They turned to

the jurists for that counsel. Jurists in *ome were not government of&cers in the modern sense of

that phrase$ since they had no of&cial powers. *ather$ their activities constituted a form of public

service$ the rewards of which were inXuence and popularity. They did not take charge of cases or

control the course of litigation through the courts. They did not charge for their services and they

received no pay from the state$ a situation that emphasized the pure public nature of their service.

They were$ perhaps$ the &rst pro bono lawyers. #n addition to giving advice in individual cases$

the jurists assisted the chief praetor ,known simply as the %raetor in drafting the Idict$ an

annual public proclamation made by the %raetor to state the principles by which he intended to

administer his of&ce. The Idict became particularly important for the development of the equity

law of *ome$ the jus gentium$ which applied to those persons who could not be classi&ed as

indigenous *omans. Jurists responded to speci&c questions of law in a document known as a

responsa. The responsa was prepared for both praetors and judices$ frequently using the device of

the interpretatio$ in which speci&c statutory phrases served as the basis for an opinion. The jurists

thus ful&lled two functions as legal advisers. 1irst$ they provided written technical advice to

judges and others about the state of the law and interpretation of te-tual material$ such as from

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the Twelve Tables ,an early statement of e-isting law$ circa >@A 0.6. or the Idict. 8econd$ they

were almost solely responsible$ through their responsa$ for the development of a comprehensive

jurisprudence$ independent of judicial decisions$ to meet the continuing and changing demands

of an increasingly pluralistic society.

.oman $a+/artic!$ar$y the +ritten +ors of these $ater &!rists/had an imortant

in'!ence on history" The +ritten $a+ of .ome had evo$ved from resonsa to the $e#a$

treatises reared (y the &!rists% or &!riscons!$ts% as they came to (e ca$$ed" The $a+

!nder+ent f!rther evo$!tion in $ater eriods of the mire% c!$minatin# in a

comrehensive statement of rivate $a+ reared (y the &!rist ai!s in the $atter

ha$f of the second cent!ry "" ai!ss nstit!tes +ere an e*tensive co$$ection of

$e#a$ rinci$es and r!$es coverin# matters ran#in# from the ri#hts of citi,enshi and

the man!mission of s$aves to thereservation of estates and the r!$es of intestate

s!ccession" The nstit!tes co!$d(e ana$o#i,ed to modern horn(oos% in that they

+ere e$ementary disc!ssionsof .oman $a+ desi#ned to ed!cate st!dents% as +e$$ as

assist ractitioners in thereso$!tion of iss!es in a artic!$ar case" n e*cert from

the nstit!tes isrerod!ced in endi* "

n the si*th cent!ry% the meror !stinian ordered the rearation of aneven more

comrehensive man!scrit coverin# a$$ asects of .oman $a+" The :or!s !ris

:ivi$is inc$!ded not on$y a re;nement of ai!ss nstit!tes% (!t the i#est


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security$ and speedy resolution of commercial disputes. )nother social phenomena of the era

giving impetus to the legal regulation of commerce was the creation and authority of craft guilds

within a city or region to regulate and control a particular trade. Municipal commercial courts

emerged to handle mercantile cases. The power of the guilds to regulate commerce within a

particular craft often resulted in the adoption of municipal statutes governing organization$

internal policies$ and commercial practices of a particular craft. These municipal statutes were

usually based on the customs of the craft guilds that had been periodically recorded$ and they

became a source of local commercial law.4ther than the municipal statutes designed to serve

guilds and guild members$ e-tensive codi&cation of commercial rules$ practices$ and custom

does not seem to have been a practice of the land version of the law merchant$ in contrast to the

maritime version. :se of precedent may have been a more common feature of land/based

transactions. #n 1rankfurt$ Bermany$ a book of precedents was maintained to assist in the

arbitration and resolution of commercial disputes. The establishment of special commercial

courts to deal with trade disputes and trade mattersUboth in the cities for the bene&t of guilds

and at markets and fairsUpaved the way for the modern practice in some Iuropean countries of

separating commercial law and procedure from other parts of the law. 6ommercial law and

procedure were assigned to a special commercial code$ and special commercial courts were

created to administer the commercial law.Thus the main river of substantive law that developed

in medieval Iurope and became the basis of modern Iuropean law was the result of the

convergence of four different streams or tributaries of law. The main tributary was *oman

law$ primarily contained in"ustinian's Corpus "uris Civilis$ as modi&ed and elaborated by the

glossators and commentators in the #talian universities. The other tributaries were customary

,local law$ canon law$ and the law merchant. Together they came to be known as the jus

commune ,or common lawKUdifferent from the common law of Ingland$ common to a whole

kingdom and the peoples within it. The!us communeas it was established in 1rance$ 8pain$ and

other Iuropean monarchies was characterized by both continuity and similarity of attitudes about

the law ,e.g.$ a bias in favor of systems and codi&cation.

The Codi4cation "rocesses in 5rance and 6ermany

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6odi&cation in the si-teenth century differed from the codi&cation process during the

Inlightenment and post/Inlightenment periods of the eighteenth and nineteenth centuries. The

former was codi&cation as a restatement of the lawK while the latter involved a rationally

organized statement of the whole &eld of law.K #n discussing the later codi&cation processes$ an

appropriate starting point is 1rance$ where Papoleon initiated a codi&cation process at the

beginning of the nineteenth century. Pot only was Papoleon responsible for the creation of the

modern 1rench code$ but he was also responsible for its dissemination to and reception in the

countries conquered by his armies. ,Papoleon regarded the creation of the 6ode 6ivil as his

greatest achievement$ overshadowing even his great military victories. Guring his e-ile on 8t.

2elena he remarked$ My true glory is not that # have won forty battles. !aterloo will blow

away the memory of these victories. !hat nothing can blow away and will live eternally is my

6ivil 6ode.K Jean 9ouis 0ergel$ %rincipal 1eatures and Methods of 6odification$ >< 9a. 9. *ev.

(AF7$ (AF


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0ook SUThe law of succession$ including hereditary succession and the rights of heirs$ wills$

settlements$ and requirements of proof relating to inheritance.

8ections of the Berman code appear in )ppendi- 6.

3.2 The Civil-Law System As It !ists and "#nctions in the $odern ra

The "ulic Law2"rivate Law Dichotomy

The generally accepted way of dividing and classifying the law in the civil/law world is quite

different from that to which common/law lawyers are accustomed.The fundamental division in

modern civil/law systems is that between publicK and privateK law. To civil lawyers$ this

distinction is basic$necessary$ and self/evident. Gespite the universal recognition of this

distinction in the civil/law world$ there is no agreement among civil/law lawyers on its

theoretical basis ,other than perhaps its historical basis/Ue.g.$ the 6orpus Juris 6ivilis$and no

uniformity among countries as to the scope of public and private law.) e-emplified in the

seventeenth/and eighteenth/century civil codes$private law has been described as that area of

the law in which the sole function of government was the recognition and enforcement of private

rights.K= Thus$ today private law includes at least the civil and commercial codes. The proper

classi&cation of other areas is often disputed. 6ivil procedure$ for e-ample$ is treated as public in

some countries and as private in others. 9abor law$ social security$ and various topics of

government regulation are often referred to as mi-edK public and private areas. %ublic law$ by

contrast$ focuses on the effectuation of the public interest by state action.K Today public law

includes at least what a common/law attorney would recognize as constitutional law$

administrative law$ and criminal law. !hile public law has its roots in *oman law$ it remained

largely undeveloped until modern times$ when the centralized state and its administrative

apparatus began to Xourish on the Iuropean continent following the Treaty of !estphalia in(E>


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part of comprehensive civil codes. #nstead$ public law consists of various statutes$ supplemented

liberally by judge/made norms$ that regulate the organization and function of public authorities

and the relationship between public agencies and individual citizens. %ublic law tends to be more

Xuid than the civil codes since it may change rapidly in response to political forces. The public+

private distinction dictates many of the basic features of legal practice in civil/law countries. The

structure and jurisdiction of the courts in civil/law countries roughly correspond to private/ and

public/law matters$ with private/law issues the province of the ordinaryK courts$ and public/law

matters addressed in separate administrativeK courts. 9egal education and law practice likewise

remain divided mainly along public+private lines. ) teacher of the private law of property$ for

e-ample$ would be unlikely to attempt to teach about property ta-ation$ land/use regulation$ or

the constitutional protection of property rightsL those topics would be left to a specialist in public

law. Ponetheless$ in the twentieth century several factors have led to a rethinking of the strict

division between public and private law. These factors include the e-panding inXuence of the

common law$ the increasing role of government in legal areas traditionally treated as private$ a

general trend toward written constitutions and acceptance of judicial review$ the increased

inXuence of organizations ,e.g.$ trade unions$ and the growth of legal &elds that defy

categorization as public or private.

Court Structure

#n contrast to the uni&ed court system typical of common/law countries$ several separate court

systems often coe-ist in civil/law countries. ) case falling within the jurisdiction of one court

generally is immune from jurisdiction in all others. !hile the typical common/law judicial

system may be drawn as a pyramid with the highestK court at the top$ the typical civil/law

judicial system would be represented as a set of two or more distinct struc tures with no bridge

between them. )s a general matter$ a system of ordinaryK courts$ staffed by ordinaryK judges$adjudicates the vast majority of civil and criminal cases. 4rdinary courts are the modern/day

successors of the various civil courts that e-isted in Iurope during the period of the jus

commune$ before the growth of the modern administrative state. Their jurisdiction has e-panded

to include matters formerly addressed by the ecclesiastical tribunals$ as well as commercial

disputes. The ordinary courts apply the law found in the civil$ commercial$ and penal codes$ and

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in legislation supplementing those codes. #n the 1rench system$ the ape- of the ordinary court

structure is the 6our de 6assation ,8upreme 6ourt of 6assation. The court reviews$ on a

discretionary basis$ only questions of statutory interpretation. The 6ourt of 6assation is

composed of about (AA judges who sit in si- rotating specialized panels ,&ve civil and one

criminal and$ in certain situations$ in combined panels or plenary session. The &rst level of

1rench ordinary courts consists of general civil and criminal trial courts and several specialized

courts. 6ases arising under the commercial code$ for e-ample$ are &rst heard in a commercial

court in which the panels of part/time judges are businessmen elected by their colleagues.

8imilarly$ employment disputes are heard by a labor court consisting of two elected

representatives from labor and management. The labor court &rst attempts to settle cases by

conciliationL if the case proceeds to adjudication$ a professional judge sits with the lay panel.

)ppeals from the trial/level courts proceed to a court of appeal within the territorial jurisdiction

of the lower court. The Berman model relies on several independent court systems$ each with its

own supreme court. #n addition to the hierarchy of the ordinary ,civil and criminal courts$ there

are separate systems of labor courts$ ta- courts$ and social security courts. The lower courts

generally sit in panels of three professional judges$ although commercial matters are heard by a

panel of two lay judges and one professional judge. 9ay involvement in labor matters also

e-tends to the appellate level$ where the judge acts in consultation with labor and management

representatives. 1inal review from all of the Berman court systems is available in the 1ederal

6onstitutional 6ourt$ which e-ercises the power of judicial review. 9atin )merican court

structures vary greatly$ with some based on separate national subject/matter courts$ and others

inXuenced by the :nited 8tatess federal+state court system ,e.g.$ Me-ico$ 0razil. )part from

the ordinary courts$ typical civil/law court systems also include a set of administrative courts that

e-ercise independent jurisdiction. The creation of administrative courts grew out of the strong

tradition of separation of powers$ a by/product of the 1rench *evolution$ that established the

legislature as the preeminent source of law. !ithin that tradition$ the judiciary was not viewed as

competent to render decisions on the legality of administrative action. #n 1rance the need for a

review procedure was eventually met through the 6ouncil of 8tate$ a body that began as advisers

to the Ring and gradually became the central point for review of government conduct. Today$ the

6ouncil of 8tateUwhose members are public administrators with training different from that of

the ordinary judiciaryUis the principal source of 1rench administrative law. 4ther countries$

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including 0elgium and #taly$ have followed the 1rench model and have allocated similar

administrative jurisdiction to their own councils of state. #n Bermany and countries that follow

its model$ special administrative courts have been created. #n theory$ ordinary court and

administrative court jurisdiction is separate and e-clusive$ but disputes arise. #n 1rance$ a special

Tribunal of 6onXicts decides which is the proper court for a disputed case. #n Bermany$ the court

in which the case is &led decides whether it has jurisdiction and may transfer cases over which it

declines jurisdiction. ) decision refusing jurisdiction is binding in the transferee court. #n other

countries$ such as #taly$ the 6ourt of 6assation is the &nal authority on conXicts of jurisdiction.

6onstitutional law poses a special for civil/law judicial administration.The recent adoption of

written constitutions$ for e-ample in Bermany and #taly since !orld !ar ##$illustrates the e-tent

to which the public+private law dichotomy affects court structure and jurisdiction. #n those

countries$ some method of reviewing legislative action for constitutionality was necessary$ yet it

was clear that this power could not be e-ercised by the judiciary ,i.e.$ the ordinary judiciary

without violating the doctrine of separation of powers and limiting the supremacy of the

legislature.Just as the development of the modern administrative state led to the creation of a

separate jurisdiction to review the legality of administrative actions$ in Bermany and #taly the

solution to the question of judicial review was to establish separate constitutional courts. 6ivil/

law fundamentalists have occasionally argued that these tribunals cannot really be courts$K since

civil/law courts$ strictly speaking$ merely interpret and apply the law made by the legislature.

Ponetheless$ this view has yielded in the same way that most observers now regard entities such

as the 1rench 6ouncil of 8tate as a courtK and its of&cials as judges.K Thus$ the strong principle

of separation of powers and the traditional civil/law limits on judges powers continue to apply to

the work of the ordinary judiciary. 6onversely$ the separate administrative and constitutional

courts are not thought to violate that principle.

The Le%al &rocess

Civil "rocedure

Modern codes of civil procedure stress that judicial proceedings are public and controlled by the

parties. %arty control$ however$ is somewhat tempered by the e-tensive power of the civil/law

judge to supervise and shape the fact/&nding process and by the role of the public prosecutor in

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private actions. #n contrast to the progressive unfolding of evidenceUunder near complete

control of the partiesUthat occurs through the discovery process in the )merican common/law

system$ there is no formal civil/law counterpart to discovery. Por$ in most cases$ is there any

single event that the common/law lawyer would recognize as a trial. #nstead$ a civil/law civil

action is a continuing series of meetings$ hearings$ and written communications through which

evidence is introduced and evaluated$ testimony is taken$ and motions are made and decided.

#nitial pleadings are quite general$ and the issues are de&ned at the direction of the judge as the

proceedings progress. The civil process tends to be conducted primarily in writing$ and the

concept of a highly concentrated and dramatic trialK in the common/law sense is not

emphasized. Thus$ a lawyer who wishes to question a witness must &rst submit to the judge and

opposing counsel articles of proofK describing the scope of the potential questions. The witness

will be questioned at a later hearing at which the judge will typically ask the questions$ often

framing or reformulating the issues raised in the case. 6ross/e-amination is uncommon. #nstead$

opposing counsels role is to make certain that the record summary of the testimony is complete

and correct.

The judge supervises the collection of evidence and preparation of a summary of the record on

which a decision will be based. 8ince there is no pretrialK phase of the proceeding$ the evidence

is not discoveredK in the sense understood by common/law lawyers. #nstead$ the parties submit

proposed evidence to the judge in writing or at oral hearings$ and the judge delivers rulings

concerning the relevance and admissibility of evidence. )dmissible evidence is presented$ for the

&rst and only time$ in the &nal hearing that constitutes the trial. Many of the differences between

the common/law and civil/law judicial process may be attributed to the absence of the civil jury.

!hile some specialized courts involve lay people e in the courts decision/making process$such

lay judgesK are not usually chosen on the basis of their impartiality$ as are common/law jurors.

9ay judges are generally selected on the basis of e-perience in the subject matter of the court

,e.g.$ labor law$ or as representatives of a particular interest group ,e.g.$ unions or management.:nlike common/law jurors$ lay judges usually serve for a continuing term instead of only a

single case.6ivil/law procedure does not emphasize the need to have a single/event trial because

there is no need to convene a jury to hear the evidence$ &nd the facts$ and apply the law to the

facts.The absence of the civil jury also helps to e-plain the relative lack of restrictions on the

admissibility of evidence in the civil/law system.

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Criminal "rocedure

The typical criminal proceeding in a civil/law court is divided into three phases the investigative

phase$ the e-amining phase$ and the trial. #n the investigative phase$ a government of&cial

,generally the public prosecutor collects evidence and decides whether it is suf&cient to warrant

formal charges. Guring the e-amining phase$ which is primarily conducted in writing$ an

e-amining judge completes and reviews the written record and decides whether the case should

proceed to trial. )t this stage$ the defendant may be questioned$ but has the right to remain silent

and to be represented by counsel. The e-amining judge plays an active role in the collection of

evidence and interrogation of witnesses. )s in civil proceedings$ however$ there is no counterpart

to common/law cross/e-amination. )s a result of the thoroughness of the e-amining phase$ the

trial itself differs signi&cantly from a common/law criminal trial. %erhaps the most striking

difference is that the record already has been made and is equally available to the defense and the

prosecution well in advance of trial. The main function of a criminal trial is to present the case to

the trial judge and$ in certain cases$ the jury$ and to allow the lawyers to present oral argument in

public. )s noted above$ civil/law countries do not have a tradition of jury trials in civil cases.

8ome countries$ however$ have introduced the jury trial for serious criminal matters$ while others

use a combination of lay judges and professional judges in criminal cases.

Appellate "rocedure

) primary difference between common/law and civil/law appellate procedure is that intermediate

appellate review in the civil/law tradition often involves a de novo review of both the facts and

law of the case. Thus$ intermediate appellate courts may obtain additional testimony$ supervise

the collection of new evidence$ and seek out e-pert opinions. #n some civil/law systems$

appellate review in criminal cases does not involve de novo factual review. #n Bermany$ for

e-ample$ most criminal trial court decisions are subject to appeal only on points of law$ and those

appeals are heard by an appellate court of last resort. )ppellate courts of last resort$ like their

common/law counterparts$ generally consider only questions of law. 8ome of these courts follow

the 1rench system of cassation$K in which the court decides only the question of law that has

been referred to it$ not the case itself. The 6ourt of 6assation may either af&rm the lower court

decision or remand the case

licenta murzac

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