For many years, regulating human behaviors has been a problem in the human society. Different societies have come up with a mechanism for rulemaking, law enforcement, dispute resolution and imposing penalties upon those who commit infractions. However, the legal structures designed to perform these functions are diverse just as the societies forming them. Law is, therefore, an inextricable feature shared by all civilizations to defend the idea of morality where people live in the secular world. Different societies have developed complex bodies of rules to control criminal activities. Some of them include common, civil, socialist, Islamic and indigenous law systems.
Common Law System
Common law system is one of the major legal traditions in human civilization. Typically, they are not codified and therefore there is no comprehensive compilation of legal rules and statute. The judges consider both civil and criminal matters to make decisions, deliver ruling and develop their precedents. The verdict rendered depends on acceptable shared values and customs of a society. Likewise, other similar precedents maintained over time through court's record or historical documents of earlier cases may be used by a presiding judge to make his or her decision. The system relieves parliament law-making pressure and allows the judiciary to respond to real-life conditions efficiently. Nevertheless, like most aspects of law, the system has its merits and demerits.
Merits of Common Law
Common law is more flexible, faster and responsive than other criminal law systems. As a result, its structure conveniently addresses facts and situations that may not have been anticipated or foreseen by the legislators. For instance, it is difficult for parliament to legislate for every possible condition, problem or action but the common law can examine and develop retort to real-life situations. Likewise, precedents are subject to challenges, but courts provide an opportunity for common law reform due to its flexibility. The doctrine of precedent also works commendably in most settings because it allows for consistency and stability in the legal system. Therefore, parties in a trial understand that decisions made by judges are founded on precedent, rather than individual views or arbitrary decree.
Unlike other criminal law systems, common law is more specific. The role of judges is just to examine particular facts in each case, interpret applicable rules and administer the ruling in line with these findings. Contrary to acts of parliaments which provides general instructions, common law gives an exact outline how it should apply in a given situation. Also, the system has political independence, and because of this, the system can implement reforms that might be controversial or unpopular.
Demerits of Common Law
In instances where more than two criminal law systems are in use which is the case in most nations common law is easily overridden. For example, in most European countries parliament is the supreme law-making body and therefore the common law is inferior to legislation made by legislatures. In other cases, judges are not accountable to people which makes some people feel they make decisions that are inconsistent with community values and standards. Therefore there is an inclination that common law is undemocratic.
Additionally, the system has been criticized for being reactive rather than proactive. For this case, courts can only deal with cases brought before them and until applicable charges are laid changing these laws and precedent is not possible. The courts also lack time, personnel, opportunities, and resources to contemplate the changes they make. Unlike in parliament where rules will have to successfully go through several stages before assent judges have minimal time and resources to review their decisions.
Civil Law Systems
Civil laws are articulated and have continuously updated legal codes that specify all issues likely to be brought before a court. The structure outlines a precise applicable procedure and appropriate punishment for each offense. The substantive law determines the acts subject to civil or criminal prosecution while procedural code determines instances when an action constitutes a criminal act. The penal statute outlines various penalties likely to be issued to the offenders. Under civil law system, a judge should apply the provisions of an applicable code to investigate, charge, and decide on a case. The judge's decision is not essential in shaping civil laws as they operate within a framework established by a comprehensive codified set of rules.
Merits of Civil Law System
A significant advantage of civil law design is that it gives assurance of competence and independence in the litigation. A trial involves several judges; some build the records, others manage the ruling process, and others will provide a decision on the case. In some instances, the involved judges sit on a panel to give significant litigation. By involving several judges, this creates numerous whistleblowing opportunities thus preventing judicial integrity. The system also encourages the emergence of specialized courts which promotes the best use of experts and increased technical considerations. Specialization also protects the regular judiciary from political influence and other profound controversies.
Making decisions based on articulated records makes the system less arduous for all parties involved. In fact, for the judges, they are in a position to give a thoughtful consideration after reviewing experts' information. Whenever there is a need for correction civil law design allows the administrative process to invent new values of consistency and equality of treatment, therefore, upholds integrity in a while faced with significant responsibilities.
Demerits of Civil Law
Civil laws are not flexible as they cannot grow and evolve to cater for arising situations. Often due to scientific development and cultural dynamics such as social norms and values in a given time, the surrounding and acceptable code of ethics keep changing. However, civil laws are mostly textual and are written down by legislative bodies and therefore are permanent. Also, it is time-consuming and difficult for legislatures to enact new laws to revise or amend existing one mainly when an unforeseen situation arises. As a result, this is detrimental to the interests of trial parties and the community at large. The civil trials for libel and some coroner cases a judge decides on factors of the law. However, due to lack of separation between facts and law the jury cannot represent the views and stances of ordinary citizens limiting the reliability of the system.
Islamic/Sharia Law System
Sharia is an Arabic word meaning the right path. Before its establishment, the Muslim community had their tribe customs governing hospitality, marriages, and revenge among other activities. However, as the Muslim empire expanded the Sharia grew along with some essential features such as which were initially addressed through traditional doctrines. Sharia law system is broad and regulates private and public beliefs and behaviors. It is a comprehensive system covering the relationship between humans, society and the creator. Also, it has distinctive characteristics distinguishing it from other legal systems.
Advantages of Sharia Law
The Sharia law rest upon solid principles derived from Quran. The Quran is carefully and accurately recorded and preserved, and therefore the system is relatively stable. Also, the readings have injunctions for legislation related to life. Consequently, it gives justice between communities, obedience, and cooperation in righteous conduct. At the same time, the scriptures leave the application of law open to a possible circumstance which makes Sharia flexible to contemporary situations. The Islamic religion leaves juristic discretion open to tremendous capacity for development
Demerits of Sharia Law
Among other laws, Islamic law is the most intrusive and restrictive, particularly against women. For instance, those found guilty of adultery are punishable by death. Also, a divorced wife loses custody of children over the age of six. Additionally, Sharia prioritizes punishment over rehabilitation and penalties favored include are corporal and capital punishments rather than incarceration. Some of Sharia provisions are controversial and collides with legislates from other systems.
In conclusion, most nations today follow at least one legal tradition. The civil and common laws are the most established. The two models have dominated the development of global legal cultures for years. However, other systems also have significant influence and affect legal institutions and national laws particularly in emerging legal methods. Lastly, customary and religious laws are still among strong systems impacting the legal cultures positively.
Chiesa, L. (2014). Comparative Criminal Law. Papers.ssrn.com. Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2387304LaFave, W. (2017). Principles of criminal law. West Academic.
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