Comparative Legal Systems Civil law
Civil law can be defined as a system of law that is involved in inquiring about resolving disagreements that are not criminal related such as property ownership, divorce, differences over the meaning of contracts and personal or property damage among other issues. One is able to learn that a civil court is a special place where people with problems are able to settle them peacefully. In addition, it is worth noting that the purpose of civil law is to provide a lawful remedy for finding solutions to issues. However, this type of law can be based on a state or centralized decree while at other times it is based on a ruling by the court thus such cases regularly involve lawsuits filed by a plaintiff in the hopes of being awarded damages caused or some other favorable form of compensation by the court (Merryman & Perdomo, 2007). The laid down procedures state that if a civil case involve a plaintiff who has been harmed or injured due to the action or inaction of the defendant, the latter may be entitled to payment of damages. Therefore in the case where Walter G. Tonkle, the former president of the United States, is charged with war crimes by the International Criminal Court based on allegations of torture in a military prison, the civil court ruling may decide to order the accused to compensate the accuser since as per the constitution it is clearly stated that each and every person has the freedom from torture (Langbein, Lerner & Smith, 2009). The judge from the International Criminal Court may choose to consider different systems of civil rights jurisdictions based on the countries that the plaintiff comes from. For example, in Rome, the case may be dismissed since torture in military prisons is considered as part of the disciplinary actions against fugitives whereas on the other hand, in the United States of America, the constitution clearly protects this type of treatment against humans regardless of being a prisoner. From the above arguments, it is significant to note down that civil law may be included in common law which encompasses equity matters. Moreover, civil cases may have common characteristics with criminal law cases in which an individual may be charged with both civil and criminal transgressions (Patterson, 1999). The history of civil law can be traced back to 1500AD during the times that the organization of scholars and judges trained in Roman law principles. One is able to learn that the said principles were modified with time and later used in courts to deal with all classes of legitimate disputes although the local jurisdiction still relied on enforcement of customary law for long before fully adjusting to the civil laws. History has it that the Corpus Juris Civilis had become the foundation of officially authorized science throughout Western Europe and this opened way to the next step which consisted of emulating the regulation of Justinian. The latter was accorded the function of stating the laid down principles in the accurate and ordered form (Merryman & Perdomo, 2007). The structure of civil laws follows a systematic procedure before a ruling is made about an issue raised. It is therefore worth noting that in this form of litigation, the weight of proof begins with the dispute tabled by plaintiff to the jury. Nevertheless, there are a number of technical situations which shift the weight to the defendant. For instance, a case whereby the petitioner has prepared a prima facie, the burden transfers to the defendant to disprove or invalidate the plaintiff’s indication. According to this form of law, an accuser wins compensation if the predominance of the evidence given favors the individual. Common law The term common law which is also known as case law refers to a type of law that is built up by the jury through decisions of courts and similar tribunals but not through legislative statutes or executive branch action. This is a type of a legal organization that accords priority to the common law on basis of treating unsocial traits for different purposes and different occasions. It is therefore worth noting that the jury comes up with common law through writing down their opinions and views regarding the case presented before them in courts by lower courts in lower jurisdictions (Sypnowich, 1990). The groundwork for common law is shaped by contracts, torts and property thus each state is solely responsible for its common law which evolves persistently. For instance, in the case study given, former United States president, Tonkle allegedly authorized torture of military prisoners in specific camps within the states of America. This decision by the commander-in-chief is likely to be dropped by the jury of the United States of America considering the situation that the constitution requires the president to be above the law. However, the jury in the International Criminal Court and other nations which clearly stipulate the common law and its recommendations like England will instead pass a ruling against the president for acts of torture because it is internationally prohibited; this may be seen as a threat to human life and most probably attracts a warrant of arrest (Sypnowich, 1990). The history of common law can be traced back to old England where there were two types of courts namely law and equity. One can observe that in law, the court judge applied statutes to pass the ruling. statutes can be described as laid down procedures and elements that explain the law in details thus this is the type of system that has served as the basis of legitimate structure in England and several other English-speaking countries, particularly those that were former British colonies like Canada, Sri-Lanka, the united states with exception of Louisiana, Hong Kong and the Philippines. Studies by history scholars reveal that law was invented in England by three courts with an aim of establishing a system that could take over from the judgments of narrow courts. The three are; the King’s Bench, the Court of Common Pleas and Exchequer (Merryman & Perdomo, 2007). The structure and application of the common law is designed in a manner to ensure that those people who suffer wrongful acts also called torts are compensated. It is worth noting that the reasoning used during the legal proceedings to deliver a ruling on common law is known as casuistry. This is a severe, principle-based way of thinking which utilizes the prevailing circumstances of a case in evaluation of the applicable laws. Verdicts made from previous similar cases are vital and valuable in determining the current ruling. In addition, the potency of the resemblance among the cases, in turn, supports the reasoning based on them. Codification is the method by which a statute is passed and is mostly contained in a solitary document which makes it easy to understand and differentiate civil laws and common laws (Friedman, 1975). Religious legal systems Religious law which is derived from the sacred texts of religious traditions alleges to envelop nearly all the aspects of life as a faultless fraction of devotional responsibility to an inspirational, impending, or deep theoretical authenticity, either delicate or planetary. This type of law is viewed as a guide of comparative and permissible study since it is argued that it is part of traditional lethal philosophy which is to date considered a crucial back up segment during formulation and making of new laws. However its application to ritual is an older area but normally excluded from dialogue and categorization (Langbein, Lerner & Smith, 2009). In relation to the Tonkle’s trial, the aftermath of events that took place in the military prisons after the president authorized the torture were highly condemned as a threat to human life. The academic attention in Islamic law and countries governed by its principles as implemented along with material positive law grew in an attempt both to understand the legal culture of human right conflicts and devised ways of addressing issues arising in multicultural jurisdictions with greater understanding. In addition, it became clear that in vicinities of private law such a freedom from torture and right to life influence the secular law and are usually incorporated as regimes in various communities especially in Russia (Friedman, 1975). Researchers in response to the international criminal court’s trial regarding this case argued that even though the judiciaries in India and Israel generally issue verdicts in support of secularism, they have inadequate ability to resist the trends that control the superpower politics like the USA and the Soviet Union including the pressures of religious constituencies, without losing legality and authority. Therefore, one can observe that states that are usually committed to ideologies of secular supremacy and decree should be cautious when introducing elements of religious law into their legal systems since there are cases where civil legal principles conflict with religious mandates resulting to regular civil courts having difficulty upholding and enforcing the civil law as well (Patterson, 1999). Socialist law Socialist law is termed as the legal system used in Communist states. it is observed that this type of law is based on the civil law organization with minimal alteration so as to help it in the Marxist-Leninist ideology. Nevertheless, the most essential points to note about these alterations is that it contains the provision for state or agricultural co-operatives-owned property and has special courts and laws for state enterprises. Prior to the end of Walter G. Tonkle’s term as the president of the United States, the socialist law was generally considered to be one of the major legal systems of the world that was concerned with his trial for allegations of torture which socialists viewed as abuse to human life. However, due to the disintegration of communism in most countries, and the fact that it was very similar to the civil law system, various states no longer took interest in the trial thus giving the defendant an easy time to defend the actions accused against him (Osakwe, 2007). Comparison of Legal Systems It is possible to point out that all the legal systems consider breach of law as a serious offence and take tough actions during their ruling. Tonkle’s case was viewed by all the systems as an abuse of human life and a violation of right to life. It is evident how all the systems condemn the authorization of torture against military prisoners. Secondly, one can observe that all the systems concerned about law have room for transparency which is the most essential characteristic of a good legal system. Scholars argue that there can never be a functional legal system if it is not crystal clear, based on honesty and easy understand the basis used in passing the verdict (Patterson, 1999). Post-Colonial Thought In conclusion, for a justice system to run efficiently there must be minimal government interference as well as political stability in the country. The post colonial freedoms have left the politicians making the judiciary systems puppets of manipulation for own selfish gains whenever they are trapped in scandals that may jeopardize their political careers. Steps to ensure this should be maintained by ensuring that each and every judicial system in any given state is independent of government influence and that there is application of fairness in every trial before a verdict is passed. Corruption is another factor that should forever be eliminated from the judicial chronicles even though the inescapable like oxygen. The people commended with applying and enforcing the law should never agree to bribes from the affluent who wish to have the results of cases bend in their direction. There is no use of having the law when the people entrusted with the conscientiousness of protecting it are fraudulent themselves; in any case they should be leading by examples so that the others can accept and respect the law (Osakwe, 2007). Reference page Langbein,J. H, Lerner R. L , Smith, B. P., History of the common law: the development of Anglo-American legal institutions. California: Wolters Kluwer Law & Business, 2009 Osakwe C., Socialist law. Palo Alto: Stanford University Press, 2007. Merryman J.E., Perdomo, P.R., The civil law tradition: an introduction to the legal systems of Europe. Palo Alto: Stanford University Press, 2007.
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