Abstract:
In this second case study, this paper will examine and explain the two major legal traditions that are followed in our modern society: Common and Civil Law. In addition, this paper will also explore the major differences that are used in the two procedure, and will determine which of the two best fits the criminal procedure that is used in the United States.
Introduction:
Law and legal systems play a very important role in our society, and through the world. There are many different types legal systems that are followed in many different rules, and beliefs, that controls the behavior of individuals in human civilization. As a whole, most nations around the world follow one of the two major legal traditions: Common Law, or Civil Law. Common Law advocates believe that the best way to obtaining the truth is a competition between two parties over who has the right correct facts of a case, whereas the Civil Law advocates believe that judicial control of the investigation process is the best way to solve a case. Therefore, both laws have different beliefs that create the differences in roles of witnesses, judges, and attorneys to undercover facts of the truth.
Comparison of the Two Law Procedures:
The primary difference in a civil and common law criminal procedure lies in the status and obligations of the judge during trials. The judge in the common law system is a fair and balanced arbiter who superintends over the contest between the prosecution and the defense (Gunn & Mevis, 2018). The judge will normally guide the jury on the law and ensure due procedure rules are followed in court but mainly leave canvassing of issues to the two parties in a trial. Rarely will a judge make a personal inquisition on matters of fact relating to the case as the judge is mainly involved in adherence to procedure, just like a referee in a sports match. In an inquisitorial system, the judge is a major player in the trial and is involved in establishing the fact of the case so as to determine the guilt or innocence of the defendant. In mild forms of the civil system, the judge will ask questions and guide investigations on issues that are not clear. In extreme cases of the civil law system, the judge acts as an investigator and will even conduct investigations outside the courtroom (Gunn & Mevis, 2018). Therefore, in an adversarial system, guilt or innocence is determined by how the two parties argue their cases in court but in an inquisitorial system, the court will get out of its way to find the truth.
In comparison, both law systems have the similar sources of law; they both have statutes and case laws, that approach regulation and resolving issues in different ways from different perspectives. Whether under criminal or civil systems, criminal procedure is based on written laws that have to be rigorously followed for a person to be lawfully convicted or acquitted. The need for rigorous adherence to the law is based on the fact that unlike general judicial processes that involve property, the criminal law places the life or freedom of a defendant in peril (Gunn & Mevis, 2018). To protect human rights, criminal procedures under both the civil and common law systems are rigorously structured. The second similarity is that both systems follow the same process except in judicial proceedings. Crimes will be reported to police officers, investigated then a suspect or suspects are indicted in a court of law. The difference is mainly in what happens in court but not how cases are investigated or how suspects end up in court. Finally, upon conviction, both systems end up in a legally defined punishment for the crime and not some impromptu kind of informal punishment (Gunn & Mevis, 2018).
Law Procedures that best fits the U.S:
As a result, Common Law procedure best fits the United States. When we look back in history, Common Law was originated in the Enlightenment period in England and the English colonies, like the United States, that adopted the system as well. Therefore, the criminal procedure that is used in the U.S is mainly based on the idea of precedent: when a court makes a decision about a case, that decision is part of the law and its country. As stated before, the Common Law is adversarial, where the prosecution and defense counsel compete against each other, presents facts to the judge to prove one is guilty. Overall, the accuser is innocent until proven guilty, not guilty until proven innocent.
Conclusion:
With the United States being one of the most diverse nations in the world in terms of race, culture, and economic status, the most suitable criminal justice system is the one that gives all people an equal chance for accessing justice. Based on the analysis of the two systems above, the most suitable system in the USA would be the civil law system. Most cases in America are determined through plea bargaining, an option that is very appealing to poor people who stand no chance of finding justice in an adversarial system. An inquisitorial system will protect such people from being railroaded by the all-powerful criminal justice system, hence enabling them to get better access to justice (Rikken, 2018). The adversarial system favors the rich and the majorities even as it discriminates over the poor and the minorities.