TYPES OF LEGAL SYSTEM

BASICALLY

3 TYPES

CIVIL LAW

COMMON LAW

ISLAMIC LEGAL SYSTEM

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Civil Law System

A mixture of French-German Law and influenced by Roman Law. AKA Inquisitorial System Practiced by most of European countries except England, and Ireland. The central source of law that is recognised as authoritative are codifications in a constitution or statute passed by legislature.
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Every law of the country is codified or written into the law In civil law countries, legislation is seen as the primary source of law. Only legislation (rather than judicial precedent) are considered legally binding courts thus base their judgments on the provisions of codes and statutes, from which solutions in particular cases are to be derived. Civil Law System practice Inquisitorial System.
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Common Law System

Common law is a system of law whose sources are the decisions in cases by judges. Developed in England. Practiced by countries such as England, Wales, Commonwealths countries including Msia.

In the common law system, cases are the primary source of law, while statutes are only seen as incursions into the common law and thus interpreted narrowly. Binding Precedent plays as important role. AKA Adversarial System (Practice Adversarial system).

Islamic Legal System

The Islamic legal system or Shariah (Islamic law) and Fiqh (Islamic jurisprudence) is the most widely used religious law, and one of the three most common legal systems in the world alongside common law and civil law. Quran and Sunnah as primary sources of law
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Sharia Law governs a number of Islamic countries, including Saudi Arabia and Iran, though most countries use Sharia Law only as a supplement to national law. It can relate to all aspects of civil law, including property rights, contracts or public law.

CIVIL LAW vs COMMON LAW

CIVIL LAW Development:

COMMON LAW

System of law derived from Roman law Commonly used in Europe

Developed by custom, among Anglo-Saxon peoples, especially in England.

Practiced in former colony of England

Features:

Practice Inquisitorial system judge actively involve in the trial. The influence of the judge in the trial tend to reduce the level of contest between two parties Judge is involve in the preparation of evidence by the police & in how the parties are to present their case at trial. Judge can ask Q to witness (play active role)

Practice Adversarial system judge decides having heard 2 opposing parties. A battle between 2 opponents. Prosecution & defence parties are free to present their case & to call & examine witness as they wish. judge plays less active role
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The essence : every law of the country is "codified," or written into the law. Codification is the responsibility of the legislative body

Earlier: legal reasoning found in cases, but today, statutes applicable as well. Binding precedent plays an important role.

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B4 French Revolution, judges are not allowed at all to make law(interpret law). Any lacunae must be referred to legislative body Now-precedent plays part but no binding effect

Doctrine of Binding Precedent applies

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Unlike common law cases, civil law decisions never stated the reasons for the particular outcome of a case. That information was kept confidential in the court's file. CT not state the reason for judgment

In Common Law ratio Decidendi plays an important role. Become binding precedent

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Primary Sources:

Legislation - primary source of law. Courts thus base their judgments on the provisions of codes and statutes, from which solutions in particular cases are to be derived. Statute plays an important role & Judge refer to statute in making decision.

Cases - the primary source, while statutes are only seen as invasion into the common law and thus interpreted narrowly. In making decision, judge always refer or depend on decided cases (precedent) and statute just plays a minor rule. Judicial decision are the core of the common law.

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Adversarial Method

A method which gives the parties and their lawyers a great control over the way in which facts are collected & presented Each party will collect its own evidence (witnesses, expert opinions, etc.) & will present them b4 a court of law. Lawyer has to do the best for their client and duty of lawyer to collect all material evidence to support the case.

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Role of judge limited as an umpire, ensuring the evidence is presented in accordance with rules/laws. Deliver the judgment based on evidence produced b4 him. If accused PG = no more controversy and case proceed to sentencing.

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Inquisitorial Method

The adjudicating body (judges) has control over the way evidence is collected and presented Success does not depend so much on the disputant/accused being legally represented but rather on the efficiency of its investigation process Judge actively take part in the trial, collecting of evidence and may ask Q to witness. If accused PG = confession is used as an evidence and PP still need to present the full case. 17

Role of Lawyer
Adversarial System

Inquisitorial System

Important & active role

Role-reduced, less active role Investigation is left to the judges.

Present evidence and fight for the truth. Investigate the truth for their client.

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Good contact with the witness, search and find their own witness. Up to them to call whom as their witness.

Prevented from contacting witness prior trial. In Germany for example, judge is very reluctant to rely on a witness who had discussed the case with the counsel prior to trial.
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Free to cross examine witness without control by judges.

Discourage from embarking on any form of extensive examination or cross examination.

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Role of Judges
Adversarial System

Inquisitorial System

Passive role Like an umpire or referees-not responsible in investigating the truth, more interested in ensuring the fair play of due process or fundamental justice.

Active role Examining magistrateresponsible for developing the truth.

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Proceedings: less control by judge. Disclosure of relevants fact and documents-judge leave to the lawyer.

Proceedings: more control by judge. To compel full disclosure of relevant facts and documents.

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Only heard two opposing parties present the case and did not involved in preparing evidence for trial.

Directly involve in preparing evidence. They may call up and interrogate any person whom they consider may have information on the circumstances of the crime.

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Process of Criminal Litigation

How the system works (eg: in Malaysia)

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First Information Report (FIR) Investigation by police =complete Send to court

Charge read to accused

Plead Not Guilty Plead Guilty
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Plead Not Guilty Trial conducted

Plead Guilty Mitigation

Evidence from Prosecution

Sentence passed

D cross examination
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Judge : prima facie case? (sufficient ground to convict)

Yes
D called to enter defence produce evidence, can recall & cross-exam any witness, Guilty OR Not Guilty (beyond reasonable doubt) Mitigation sentence acquital

No Acquittal

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Advantages of the adversarial system

Any evidence brought into the court is tested for its accuracy by the examination in chief, cross-examination, and reexamination of the evidence by each party The dispute is decided by an independent judge which gives the public confidence in the legal system. The continuous trial helps to speed up the resolution of the dispute
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..The end..

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