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Assignment

Introduction to Law
and Legal method

By Antalika Noami and Gopal Geshan


CONTENT
Gopal Geshan
What are the differences that exist between Common Law and Civil Law? 2-6

Antalika Noami
What the differences that exist between Criminal Law and Civil Law?..........................7-9
REFERENCES...9

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Qu1. What are the differences that exist between the Civil and Common law.
The original source of the common law system can be traced back to the English monarchy,
which used to issue formal orders called Writs when justice needed to be done. Because
writs were not sufficient to cover all the situations, courts of equity were ultimately
established to hear complaints and devise appropriate remedied based on equitable principles
taken from many sources of authority(such as Roman law and natural law). As these
decisions were collected and published, it became possible for courts to look up precedential
opinions and apply them to current cases. And thus the common law developed.
Civil law in other European nations, on the other hand, is generally traced back to the code of
laws compiled by the Roman Emperor Justinian around 600 C.E. Authoritative legal codes
with roots in these laws (or others) then developed over many centuries in various countries,
leading to similar legal systems, each with their own sets of laws.
In civil law countries, judges are often described as investigators. They generally take the
lead in the proceedings by bringing charges, establishing facts through witness examination
and applying remedies found in legal codes.
Lawyers still represent the interests of their clients in civil proceedings, but have a less
central role. As in common law systems, however, their tasks commonly include advising
clients on points of law and preparing legal pleadings for filing with the court. But the
importance of oral argument, in-court presentations and active lawyer in court are diminished
when compared to a common law system. In addition, non-litigation legal tasks, such as will
preparation and contract drafting, may be left to quasi-legal professionals who serve
businesses and private individuals, and who may not have a post-university legal education or
be licensed to practice before courts.
In contrast, in a common law country, lawyers make presentations to the judge (and
sometimes the jury) and examine witnesses themselves. The proceedings are then referred
by the judge, who has somewhat greater flexibility than in a civil law system to fashion an
appropriate remedy at the conclusion of the case. In these cases, lawyers stand before the
court and attempt to persuade others on points of law and fact, and maintain a very active role
in legal proceedings. And unlike certain civil law jurisdictions, in common law countries such
as the United States, it is prohibited for anyone other than a fully licensed lawyer to prepare
legal documents of any kind for another person or entity. This is the province of lawyers
alone.
As these descriptions show, lawyers almost always have a significant role to play in formal
dispute resolution, no matter in which country they practice. But the specific tasks assigned to
them tend to vary quite a bit. And outside the courtroom, tasks typically performed by
lawyers in one country may be performed by skilled laypeople in another.
Each country has its own traditions and policies, so for those who wish to know more about
the role of legal practitioners in a particular nation it is important to do additional research.

Here are a few examples of countries that primarily practice common law or civil law:

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Common Law Countries:

The United States

England

India

Canada

Civil Law Countries:

China

Japan

Germany

France

Spain

Common law is generally uncodified. This means that there is no comprehensive compilation of
legal rules and statutes. While common law does rely on some scattered statutes, which are legislative
decisions, it is largely based on precedent, meaning the judicial decisions that have already been made
in similar cases. These precedents are maintained over time through the records of the courts as well
as historically documented in collections of case law known as yearbooks and reports. The precedents
to be applied in the decision of each new case are determined by the presiding judge. As a result,
judges have an enormous role in shaping American and British law. Common law functions as an
adversarial system, a contest between two opposing parties before a judge who moderates. A jury of
ordinary people without legal training decides on the facts of the case. The judge then determines the
appropriate sentence based on the jurys verdict.

Civil Law, in contrast, is codified. Countries with civil law systems have comprehensive,
continuously updated legal codes that specify all matters capable of being brought before a court, the
applicable procedure, and the appropriate punishment for each offense. Such codes distinguish
between different categories of law: substantive law establishes which acts are subject to criminal or
civil prosecution, procedural law establishes how to determine whether a particular action constitutes
a criminal act, and penal law establishes the appropriate penalty. In a civil law system, the judges role
is to establish the facts of the case and to apply the provisions of the applicable code. Though the
judge often brings the formal charges, investigates the matter, and decides on the case, he or she
works within a framework established by a comprehensive, codified set of laws. The judges decision

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is consequently less crucial in shaping civil law than the decisions of legislators and legal scholars
who draft and interpret the codes.

Civil-law systems are more widespread than common-law systems: the CIA World Factbook
puts the numbers at 150 and 80 countries respectively. Common-law systems are found
only in countries that are former English colonies or have been influenced by the Anglo-
Saxon tradition, such as Australia, India, Canada and the United States. Legal minds in civil-
law jurisdictions like to think that their system is more stable and fairer than common-law
systems, because laws are stated explicitly and are easier to discern. But English lawyers take
pride in the flexibility of their system, because it can quickly adapt to circumstance without
the need for Parliament to enact legislation. In reality, many systems are now a mixture of the
two traditions, giving them the best of both legal worlds.

In a common law system, the judges play a bigger part in creating laws as well as altering and
modifying laws based on old preceding cases. In a common law justice system, the laws of a
country depend on the rulings or decisions of courts or other tribunals, where it is believed
justice prevailed. Common Laws are laws that have come about of been enacted based on
court rulings. These laws are developed based on rulings that have been given in older court
cases. Common laws are also known as case law or precedent. These rules can be written as
well as unwritten.

The general principal of this system is that similar cases with similar facts and issues should
not be treated differently. If there is a dispute between laws, the authority or precedent looks
to past cases and must provide the same reasoning and decision that was provided in the first
case. The laws can also be altered and evolved based on the circumstances. The judges also
have the authority to create new laws or alter and interpret older laws. Once the law has been
altered or changed during the ongoing case, the law will then be enforceable on all other
cases henceforth with similar evidence and situations. Many countries live in common law
systems or mixed systems. In a common law court, a jury is set up to hear the case and then
determine if the defendant is guilty or not guilty. On the basis of this decision, the judge then
determines the best punishment for the guilty based on older proceedings. In a common law
system, more focus is put on the precedent, compared to the statutory laws, which are
basically ambiguous laws.

Though not a rule, common law countries may not always follow a constitution or a code
of laws.
In civil law, the constitution is generally based on a code of laws, or codes applying to
specific areas, like tax law, corporate law, or administrative law.
Freedom of contract is very extensive in common law countries, i.e., very little or no
provisions are implied in contracts by law. Civil law countries on the other hand have a
more sophisticated model for contract with provisions based in the law.

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The decisions of judges are always binding in common law countries, although that does
not mean the decision may not be appealed. In the United States, for example, cases may
be heard by a network of federal or state courts, with the federal Supreme Court holding
ultimate power. Generally, the ruling of the last court that a case visits remains the final,
binding verdict. That case may later be used as precedent to argue similar cases in the
future.
In civil law countries, only the judicial decisions of administrative and constitutional
courts are binding outside the original case. In essence, the concept of precedent, i.e. past
cases can determine the outcome of future ones, is not used.
Because it began as a colony of England, the United States inherited many traditions of
British common law, including habeas corpus and jury trials. After the American
Revolutionary War, one of the first acts of the new government was to adopt existing
English common law in full, unless it contradicted the U.S. Constitution.
However, in 1938, the U.S. Supreme Court ruled that there will be no general common
law. So, from that year forward, federal courts deciding issues that originated in states
had to look to the state judicial interpretations of those matters.
The 1938 decision was later amended so that the federal government could develop a
common law based on uniquely federal interests, such as war, foreign policy, taxation,
etc.

The Republic of Mauritius (Mauritius) obtained its independence from Great Britain in
1968 and became a republic in 1992. Mauritius has maintained its membership to the
Commonwealth after its accession to the status of republic.

Mauritius has a hybrid legal system; combining both the civil and common law practices. Its
legal system is governed by principles derived both from the French Code Napoleon and the
British common law. The Supreme Court of Mauritius is the superior court of the island,
having unlimited jurisdiction to hear and determine any civil or criminal proceedings under
any law other than a disciplinary law and such jurisdiction and powers as may be conferred
upon it by the Constitution or any other law. Mauritius has, after acceding to the status of
republic, retained the right of appeal to the Judicial Committee of the Privy Council, which
remains the highest appellate court of the country.

In the past ten years, the legal framework of Mauritius has seen dramatic changes as far as
commercial legislation is concerned. Commercial activities are now regimented by targeted,
incisive and comprehensive legislations which cater for the regulation and promulgation of
commercial activities both onshore and offshore. To cite but a few examples, the Companies
Act 2001 and the Securities Act 2005 which are inspired from their New Zealand
counterparts, the Financial Services Act 2007 and the Insolvency Act 2009 have been
promulgated to make Mauritius the jurisdiction of choice for potential investors.

The Law Practitioners Act 1984 was also recently amended to enable local practitioners to
practice via local and joint-venture law firms a measure which has ensured that potential
investors and service providers in the financial services and commercial sectors receive
specialist legal support.

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Nothing is more important, in the administration of justice, than a distinct theory and law of
evidence. Without it there can be no certainty in administrative justice. For it matters not how
clearly a system of jurisprudence may define obligations and rights, if in judicial
investigations improper evidence is admitted, and proper evidence is rejected, there can be no
security. The system of common law pleading is framed with reference to this point, making
issues of fact simple, so that the relevancy of evidence can be easily perceived. The common
law is greatly superior to the civil law on this point. In the loose, detailed statements of civil
law pleadings the exact point in dispute will often be left in so much doubt that the evidence
will be various, latitudinous, and vague; and many topics will be introduced at the trial which
have nothing to do with the real questions in dispute. It has been said that the whole
government of England is but a contrivance to bring twelve men into the jury box. Trial by
jury is, therefore, in connection with the court, the great end of the government; and special
pleading is the great instrument by which that peculiar form of judicature is made efficient. It
presents the precise points to be determined, and thereby indicates the character of the
evidence required, which is all that any contrivance can accomplish.

It is thus seen how the common law pleading gives certainty to trials at law, making the
questions to be decided precise, the admission and rejection of evidence definite, and
retaining on the record, after the trial, precision in everything, from the summons to the
judgment, so that it can be know what was in dispute, what was proved, and what was
adjudged.
are the differnces that exist between Criminal Law and Civil Law?

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DIFFERENCE BETWEEN CRIMINAL LAW AND CIVIL LAW

1.DEFINITION
Criminal law
The main objective of the law is to punished the wrongdoer; to give him and other a
strong inducement not to commit same or similar crimes.
Criminal law is the body of laws which regulates governmental sanctions
Criminal law is much better known to laymen than civil law.
In criminal law, the litigation is always filed by the government, who is called the
prosecution.

Civil law
Main objective of civil law is the redress of the wrongs by compelling compensation
or restitution. The criminal is not punished.
Civil law is concerned with disputes between private parties. For example; consumer
and suppliers.
In civil law, a private party files the lawsuit and becomes the plaintiff.

2.PURPOSE
Criminal law:
To maintain the stability if the state and the society by punishing offenders and deterring
them and others from offending.

Civil law:
In contrast, civil law deal with the dispute between the individuals, organisation, or both, in
which compensation is awarded to the victim.

3. JURY OPINION
Criminal law:
In the criminal law justice system, the jury must agree unanimously before a defendant is
convicted. Only the federal or a state government may initiate a case; cases ae almost always
decided by a jury.
Whereas,

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Civil law:
Jury may not have to be unanimous. Laws vary by state and country. Juries are present almost
exclusively in criminal cases; virtually never involved in civil actions. Judges ensure laws
prevails over passion. Cases are initiate by a private party; case are usually decides by a
judge.

4.BURDEN AND STANDARD OF PROOF


Criminal law:
In criminal litigation, the state must prove that the defendant satisfied each element of the
statutory definition of the crime, and the defendants participation, beyond a reasonable
doubt.
Also innocent until proven guilty; the prosecution must prove the defendant guilty.

Civil law
However, in civil law, preponderance of evidence claimant must produce evidence beyond
the balance of probability. Moreover, in civil litigation the burden of proof is initially on the
plaintiff. Though there are a number of technical situations in which the burden shifts to the
defendant, in situation of Res Ipas loquitur (the thing speaks for itself).

5.TYPES OF PUNISHMENT
Criminal law:
A guilty defendant is subject to custodial or non-custodial punishment. (Fines or community
services, in exceptional cases death penalty. Crimes are divided into two broad classes:
felonies have a maximum possible sentence of more than one-year incarceration,
misdemeanors have a maximum possible sentence of less than one-year incarceration.

Civil law:
In contrast, a defendant in civil litigation is never incarcerated and never executed. They are
most likely to face a compensation, usually financial. While a court can order a defendant to
pay damages, the plaintiff may receive nothing if the defendant has no insurance and no
assets, or if the defendant is skillful in concealing assets. In this way, large awards for
plaintiff in tort cases are often an illusion.

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6.APPEALS AND COMMENCENT OF PROCEEDINGS
Criminal law:
In criminal cases, only the defendant may appeal a courts verdict. The prosecution is not
allowed to appeal.
By way of pleadings, representative of the state; prosecutor- Attorney General

Civil law:
In civil cases, either party (defendant or claimant) can appeal a courts decision.
By summons or indictment; state-people- prosecution.

7.MAGISTRATE ROLES
Criminal law:
In criminal case, magistrates hear cases and decide the sentence of the defendant if found
guilty or they plead not guilty. They are able to change the mode of trial hearings, and have
the power to pass summary offenders to higher courts for sentencing.

Civil law:
In civil cases, magistrates deal with cases such a family matters, where they may decide
custodial of a child after a divorce. It also deals with areas of civil debts issues such as unpaid
council tax, and dealing with people who fail to pay fines.

To conclude:
According to William Geldart, Civil and Criminal law are two broad and separate entities of
law which separate set of laws and punishment.

REFERENCES:
www.diffen.com
www.rbs2.com