In this supplement to Chapter 63, we expand on some of the principles of common law as they affect journalists. We also discuss some other legal systems operating around the world.
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As we saw in Chapter 63: Introduction to the law, there are several different types of legal systems operating in countries around the world. The one used by most Commonwealth countries and the United States is based on common law.
The other main legal systems will be discussed later. These are civil law - which we will refer to as the civil code system to avoid confusion with the civil/criminal legal distinction under common law - religious law and totalitarian law. Many countries also have some elements of customary law existing alongside their main legal system.
Although there are differences in the history, development, principles and applications of these different systems, when applied within a nation they may share common features.
Common law
This system developed from a set of traditional laws first brought together in England around the 12th Century. The name derives from the fact that it was one set of laws "common" to the whole kingdom, rather than different sets of laws used by individual communities or tribes.
One of the distinguishing features of common law is that it developed through usage rather than being imposed by codified legislation as with the civil code system. (Legislation means laws - sometimes also called statutes - that are made by a representative body such as a parliament. Codification is when individual laws of a similar nature are bundled together under one new, overarching law.)
Common law developed based on the outcomes of individual court cases. Each court case provided a basis for judging the next case of a similar nature. Over the centuries and many thousands of court cases, this process led to a body of laws covering most aspects of society and based on principles shared by the society in general.
There are several core principles which guide common law, though they are not necessarily unique to it. These include:
- The rights of the individual exist alongside those of the state;
- It is adversarial;
- It has a presumption of innocence;
- It develops case law through judgments and precedents;
- Case law co-exists with statute law and - in most cases - a constitution;
- Crimes are punished and civil wrongs are rectified by compensation.
We will now look at each of these in order, then see how other legal systems work.
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1. Based on the rights of the individual
Common law derived originally as a way of determining individual rights - especially property rights - and balancing them against the best interests of society. In medieval England where common law first developed, kings could decide what they wanted and order people to obey. For centuries to come they continued to do this, albeit with diminishing authority. The common laws which were developed and applied by succeeding judgments were meant to regulate the lives of individuals living in society rather than impose laws from above. Commentators contrast this to civil code systems in which the best interests of society itself - made up of individual citizens - is of paramount importance in deciding laws and imposing rules of good behaviour on individuals.
Proponents of common law say it also builds laws from the ground upwards - from the "grassroots" - case-by-case, rather than imposing them from the top, even by parliaments which are meant to represent the people. Common law is therefore said to be more responsive to individual needs and circumstances.
It is interesting to note that the founding fathers of the United States of America continued the colonial common law tradition when they gained independence from the British. They then underpinned it with a Constitution which emphasised the rights of individual citizens. By contrast, a few years later Napoleon imposed a codified system of laws to bring order out of the chaos of post-revolutionary France. Both systems work in their own environments and now are thought to reflect something of the national character of each country.
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2. Adversarial
Common law systems rely on adversarial justice. This means the two sides in a case have the chance to present their arguments equally before a neutral umpire for a decision. Depending on the court, these neutral umpires can be judges, juries, magistrates or chairs of tribunals - some cases combinations of these. The judge - or jury - is expected to hear all the evidence presented by each side, together with legal arguments, and make a decision on who has the strongest case. In most criminal cases, sentence is passed by a judge, whether or not there is a jury. In civil cases juries can sometimes determine the extent of compensation.
In criminal cases the two adversaries are the prosecution representing the state and the defence representing the accused person. In civil trials, the plaintiff makes a complaint against another person or company called the defendant (or in some cases the respondent). In many common law countries it is considered so important that the adversarial system operates fairly that the judge may appoint a lawyer paid for by the taxpayer to defend someone who cannot afford their own lawyer. This is often called legal aid.
Under the adversarial system, each side is usually allowed to bring witnesses to testify in the court. These witnesses are usually questioned by the lawyer who called them and are then cross-examined by the opposing lawyers. The magistrate or judge makes sure both sides get the chance to present their case fairly.
At the end of the trial or hearing, both sides then summarise their case to the judge or jury. If there is a jury, the judge will then normally present his or her own summary of the case to them before sending them into a private room to discuss the case and reach a verdict. If the jury returns a guilty verdict (or a finding for one side in civil cases), they are usually allowed to leave and the judge will then consider the punishment or the size of the compensation, usually called damages. In some countries juries can decide the amount of compensation.
If one side does not like the outcome, they may ask the court for "leave to appeal" to a higher court, where the main points of the case are argued again in front of a new judge or a group of judges sitting as a bench. This adversarial system can go all the way to the highest court in the land if the matter is important enough or involves significant constitutional matters. The highest court's decision is usually final, unless new evidence comes to light in later years which convinces them to re-open the case.
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3. Presumption of innocence
The presumption of innocence means that an accused person is innocent of the accusations until a judge or jury of their equals has determined they are not. The accused does not have to prove innocence - that is presumed. The accuser, acting through a prosecutor, must convince a court of their guilt "beyond reasonable doubt". Under common law in modern democracies, if a judge or jury has any doubt that the accused is guilty, they must return a verdict of not guilty.
This has important implications for journalists in many areas of the law. For example, when reporting a trial you must not say the accused is guilty before a judge or jury returns a verdict, otherwise you can be found guilty of contempt. Neither should you report any information obtained outside the trial itself which might influence a jury to suppose the accused is guilty, such as mentioning previous convictions.
In writing or broadcasting about people you must take care that accusations are supported by evidence or are at least reasonable, otherwise you can be sued for defamation on the grounds that the accused person is presumed to be innocent of the bad things you said about them. To use the defence of truth in a defamation case against you, it is your responsibility as a journalist to prove what you wrote was true; the defendant does not have to prove their innocence even though they are the plaintiff in the case.
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4. Case law
Judges play an active part in deciding law. Their judgments are binding on lower courts unless overridden by specific legislation. This is not true in civil code systems where the interpretations of judges is either given less weight or banned altogether, as in the Napoleonic Code - one of the earliest and most common of the modern civil code systems.
One of the features of common law systems is that courts not only have to determine the facts in a case but they also have to argue all the relevant legal precedents set by previous courts making decisions on similar matters. Both the prosecution and the defence lawyers present not only evidence of events but also evidence about how these previous cases were resolved. Judges and juries too are expected to consider not only the facts of the current case but also the arguments about previous cases.
For this reason, judgments in common law cases are often long and involved. This is so that future lawyers, juries and judges can see how a verdict was reached when considering their own cases. Traditionally these lengthy and intricate judgments were printed annually in a court's law reports, but increasingly they are being made available on the Internet, for example through the World Legal Information Institute.
Because judges at all levels in a country's legal system are making decisions about laws every day, the common law system is very adaptable to change. It can be quickly updated to meet new circumstances, often before politicians get round to formulating and passing new statutes.
For example, in Australia for more than 200 years the law acted as if the original Aboriginal inhabitants had no prior legal claim to land. This was the concept of terra nullius ("land belonging to no-one"), that there were no legal titles to land in Australia before white settlement. In its celebrated Mabo judgment of 1992, the High Court of Australia overturned the concept of terra nullius and said that Aboriginal people did have a common law legal title to land they had a long, strong and continuous connection to under customary law. Later High Court judgments such as Wik further clarified the position by deciding that pastoral rights of settler-farmers could co-exist with native title and in some cases supercede them. Sadly, Eddie Mabo, one of three Meriam men who originally took the case to court, died of cancer five months before the judgment was made. You can read the whole Mabo judgment of the High Court here or a summary of the case and its consequences by Chief Justice Sir Gerard Brennan here.
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5. Co-exists with other laws
Following on from 4. above, judges interpret the constitution and statutes (i.e. parliament-made laws) where they are unclear. Of course, the constitution of a country is the paramount law and judges are not able to change its basic provisions. But even with the constitution they can interpret how it is applied in real life. In strong democracies, judges have a role in interpreting laws as they interact with each other. For example, a court may decide that legislation passed by a parliament is unlawful because it clashes with more important constitutional rights. Such cases are usually eventually determined by the highest court in the nation or state, such as a high court or supreme court. If these courts decide a statute is unconstitutional, parliament will normally amend it, otherwise it cannot be successfully applied.
The ability for judges to interpret statute law against a background of common law means legislation does not have to state every possible circumstance. It can state the general principles and set limits (for example on the maximum amount an offender can be fined) and leave the rest for the courts to determine in line with other statute laws and common law precedents. Opponents of common law say this gives too much power to judges, whereas its supporters see this ability to interpret legal statutes in real life situations as a strength. As in many things to do with common law - or any law for that matter - the quality of judges and others people in the legal system such as lawyers and the police determine how successfully the system will work.
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6. Punishment and compensation
Punishment and compensation as remedy's to wrongdoing are not unique to common law, though it is useful to understand the principles behind both.
In common law, the concept or compensation is normally applied in the civil rather than the criminal sector, where the state prosecutes and the courts impose punishments for an offence against the state itself.
In civil courts, the principle is that a victim of a wrong by another person (or group such as a company) should be compensated for that wrong, usually with money, known as damages, but also by a court order to do something to put matters right, such as rehabilitate land which has been damaged. Common law says that compensation should be sufficient to return the victim to the state they were in before the wrongdoing took place. Of course, in a civil action where someone has lost a limb, no amount of damages will ever replace a real limb. But the courts will set an amount so the victim should have no further ill effects from the harm they were done by the perpetrator - the one who is ordered to pay.
Sometimes, the concepts or punishment and compensation can be applied in the same case. For example, when awarding damages for defamation a judge may award compensatory damages to restore the victim to their former state (or as near to their former activity as they can get), but they may also award punitive damages against the defendant. This is meant to both punish the wrongdoer but also send a signal to deter other people from doing similar wrongs. These are also called exemplary damages, to set an example.
In common law, judges decide the extent of punishment and compensation by considering numerous factors including the circumstances of the wrongdoing, the extent of the harm and the condition of the victim - sometimes even the remorse or otherwise of the wrongdoer. They also look at what other judges have awarded for similar cases in the past. Increasingly the levels of punishment and limits of compensation are set down in legislation. Politicians like to be seen to be sending a message to the public about how they view crimes and some civil harms, so passing laws with stiffer or more lenient consequences achieves this. Thus the maximum jail for armed robbery may be 20 years, but within this judges have the discretion to sentence people to less if the circumstances warrant it.
The only way a judge can send a person to prison for longer than the statutory maximum is if the person is found guilty of more than one offence, in which case a judge may order the sentences be served consecutively, i.e. one to begin after the other is finished. Normally, however, judges sentence people for multiple offences to be served concurrently, that is all starting at the same time. This means the convicted person goes to prison for the duration of the longest sentence.
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Other legal systems
As mentioned at the beginning of this chapter, there are other legal systems apart from common law. While common law is most usual in English-speaking countries and members of the Commonwealth, these other systems might also apply in certain areas. Some countries have legal systems which are mixtures of common law and other forms of law.
Civil code systems
This is the most common type of legal system in the world, either in its pure form or as a basis upon which other elements such as religious law are added.
The civil code or civil law system is also called by other names such as Roman law, Continental law or Napoleonic law. All are systems where laws are legislated by parliament or some other form of representative government and codified (i.e. brought together). They are distinguished from common law mainly because they come from parliaments, not from court cases. Indeed, in civil code systems the courts do not usually have as much freedom to interpret laws. In the original Napoleonic courts judges were specifically banned from interpreting statute laws.
The underlying principle of civil code systems is that the laws applied to citizens are made by citizens through their political representatives. Judges are there to administer laws, not make them.
Laws are codified, which means laws of a similar nature are bundled together to create a rational system across the whole area. Advanced societies try to ensure that all laws have consistent principles and interact with each other in a logical way without conflict between laws. In complex societies codified laws are vast and detailed. Critics say this means they are hard to change but proponents argue they give certainty and predictability.
Civil code systems are mainly inquisitorial rather than adversarial. That means courts are there to track down the truth, not to be a forum where two sides battle to demonstrate to a judge or jury who is right and who is wrong. Judges in civil code trials are usually more active in questioning witnesses, challenging evidence and even - in some cases - directing investigations. This is quite different to common law trials where the judge is supposed to be impartial.
Although the presumption of innocence is not usually stated explicitly in civil code laws, many countries have subsequently built it into their systems by adopting external or international obligations. For example, most European countries have ratified the European Convention on Human Rights which guarantees the right to a fair trial and the presumption of innocence. Thus these principles have become part of their national laws.
Trial by jury is less common in inquisitorial systems, especially when judges have a strong role in hunting down the "truth' in a case rather than arbitrating between two adversarial parties. The common law developed to give accused people the option of trial by their "peers", meaning people from society in general rather than from the country's rulers. Juries are, however, used in some civil code countries such as France, Norway, Spain and Brazil, albeit usually for a limited range of offences, mainly criminal.
However, even in some common law countries trial by jury is either unusual or unused, especially in societies where tribal or clan loyalties might make it difficult to find people unaligned to either party (i.e. the accused or their alleged victim) to make the objective judgment so important to the jury system. Papua New Guinea's Constitution provides for trial by jury but they are not used. They were abolished in India in 1959 after a particularly contentious case.
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Religious law
Here we are not talking of laws governing the religious practices of believers but of a country's legal system being based on religious laws which apply to people as citizens in both their private and public lives.
Although throughout history many countries have had legal systems based wholly or partly on religious laws and teachings, today by far the most common are those aligned to Islam.
The University of Ottawa's Faculty of Law website lists 36 countries with legal systems based wholly or partly on religious law. These range from countries such as The Maldives where the legal system is almost exclusively Islamic to Singapore and India where religious law plays only a small part in the overall legal system.
Islamic law (Sharia) is based on the Koran and Sunnah holy books, supplemented by interpretations over the centuries by Muslim scholars and jurists. It provides rules on how practising Muslim should live their lives. Like common law and civil code law, Islamic law is still evolving and there are still disagreements about exactly what makes up Sharia and its scholarly interpretations (Fiqh).
Islamic law shares some similarities with common law, principally the fact that it has evolved through application, with current judgments based on precedents and the analysis of previous cases of a similar nature. There are, however, some fundamental differences in areas such as individual rights and equality before the law, especially in the treatment of women.
Although some Islamic scholars disagree, judges in Islamic law are given freedom within Sharia and Fiqh to analyse precedents (case law) and contemporary circumstances to provide judgments suitable to the present day. In some countries, however, judges are encouraged or even required to make very literal applications of the laws, with little room for contemporary interpretation. For example, there is still ongoing debate between fundamentalists and modernists in Islam about the correctness of severing limbs for crimes.
Many countries where Islamic law forms part of their legal system also utilise elements of civil code law. This is especially true of countries which have gained independence from colonial powers which themselves relied on civil code law. This cross-influencing shows itself in either the adaptation of one system by the other or more commonly by the way in which new laws are devised specifying how the two systems can work together. Indonesia is a good example of how the latter can be applied. In many countries, civil code laws apply to certain aspects of public life while Islamic law applies to other aspects, usually more personal matters such as family law. In many countries two separate court systems are maintained to deal with these differences.
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Totalitarian law
Through modern democratic eyes, totalitarian legal systems - whether hardline communist states, feudal autocracies, personal dictatorships or absolute monarchies - are not so much separate systems of law as the arbitrary application of some elements of the other three systems and the rejection of some basic principles of human rights.
Probably the most common system of totalitarian law is socialist law, though this is currently on the wane throughout the world. Even in its most virulent days, socialist law was arguably little more than an amalgam of civil codes law overlaid on Marxist-Leninist theory. It differed from traditional civil code legal systems in areas such as the rights of the individual, property law or unbiased court processes.
One cannot, however, dismiss socialist and other totalitarian states as being merely misapplied civil code law. The fact that their laws lacked provision for the individual to challenge the state meant they could never evolve. The great strengths of common law and civil code law - and some modern brands of Islamic law - are that they change through application and correction at the hands of the people themselves - individuals involved in court cases in common law and through the democratic process of legislation in the case of civil code law.
It is fruitless in a discussion such as this to single out corrupted legal systems from those which simply do not work well. Not only are there significant differences in emphasis between common law, civil code law and religious law systems and vast disparities in their application around the world, but measures such as human rights, crime rates or the severity of sentences are open to subjective interpretation depending on one's views on individual rights compared with the obligations of citizenship.
Modern China, for example, is evolving from a socialist law system to a more mainstream civil code law system, though is still a considerable way short of countries such as France in applying principles such as equality before the law or freedom of speech.
There are, however, dictatorships such as Burma or North Korea in which is is difficult to distinguish any consistent system of laws and their application beyond the personal whim of those in power.
For more information on which systems are used in different countries, there are a number of good reference sites:
World Legal Systems at the University of Ottawa presents the information in several ways, including a world chart, a table of the 192 member states of the United Nations and a chart comparing numerically how the different systems are used globally.
Legal Systems of the World at Wikipedia gives useful explanations of the different systems and a country-by-country description of which systems are used, including mixed systems.
The CIA World Factbook Field Listing of Legal Systems gives a brief description of the legal system or systems used by each country (and some of their overseas territories), as well as whether or not they have accepted the jurisdiction of the International Court of Justice (ICJ).
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