A Judge’s Role: Common Law Versus Civil Law Research Essay

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It is an inaccurate belief by abiders of the common law system that ‘judges play the central role in all legal systems.’ Religious, customary, and socialist legal systems and traditions, for example, do not revolve around judge-made law as common law does. This essay, however, will only deliberate the essential differences between common law and civil law systems. Comparisons will be made of the People’s Republic of China to the Australian legal system, assisting with the analysis of the statement. It is the two system’s individual reliance on either codes or jurisprudence, though, that explains how erroneous the statement is.

The Common Law System

Common law systems are some of the few legal systems in which judges play a central role. In common law, judicial rulings and past legal precedents guide judges in formulating decisions in cases.[footnoteRef:1] Margaret Fordham describes judges as ‘[playing] a pivotal role’ in the system, ‘molding and changing the law through case-by-case development.’[footnoteRef:2] This allows the legal system to be more comprehensive, focused, flexible, and to seamlessly develop with societal requirements and emerging areas of law.[footnoteRef:3] In Angelo Dondi and Geoffrey C. Hazard Jr.’s article, the role of judge in common law is described as managerial. While during proceedings Dondi and Hazard admit that judges act as passive moderators, permitting rival advocates to present their arguments, it is the judge that makes the ultimate decision – holding the potential to impact the law surrounding the case.[footnoteRef:4] The Australian Constitution also supports the concept that in common law systems, judges are significant influencers. [1: Angelo Dondi and Geoffrey C. Hazard Jr., ‘Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits’, Yale Law School Legal Scholarship Repository (Web Page, January 2006) p. 60-61 < https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.ecosia.org/&httpsredir=1&article=3371&context=fss_papers>] [2: Margaret Fordham, ‘Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in Asia’, National University of Singapore (PDF, 2005) p. 3 ] [3: Ibid.] [4: Angelo Dondi and Geoffrey C. Hazard Jr., ‘Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits’, Yale Law School Legal Scholarship Repository (Web Page, January 2006) p. 60-61 ]

The Constitution of Australia, Australia being a country following the common law system, corroborates with the statement that in its legal system ‘judges play the central role’. Chapter three, section 73 of the Constitution of Australia states that;

“The High Court shall have jurisdiction… to hear and determine appeals from all judgments, decrees, orders, and sentences… and the judgment of the High Court in all such cases shall be final and conclusive.

But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter…”[footnoteRef:5] [5: ‘Commonwealth of Australia Constitution Act’, Parliament of Australia (Web Page, n.d.) Chapter 3, s (73) < https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution>]

It is thus clear the power in which the judges, who control the High Court, hold. Judicial decisions in the High Court are uncompromising, adding to the comprehension of the law the case is involved with, as a result of the Constitution. Parliament also maintains limited interference in law surrounding cases – providing judges with free range on the condition they abide by the statute.[footnoteRef:6] This is evident in the case of Mabo & Ors v The State of Queensland (1992) 175 CLR 1. [6: Margaret Fordham, ‘Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in Asia’, National University of Singapore (PDF, 2005) p. 2 < https://law.nus.edu.sg/asli/2nd_asli_conf/pdf/margaret2005_01.pdf>]

In the Mabo case, the High Court of Australia considered the change in social and political circumstances and exercised their power. Native land rights were brought to question and the High Court held that ‘the acquisition of Australia in the name of the British Crown did not necessarily extinguish native title, overruling ‘the common myth of terra nullius’ that was older than the Constitution.[footnoteRef:7] They were nevertheless heavily criticized for acting ‘legislatively’; for many believed indigenous rights to be an issue requiring the focus of the legislature, not of the courts.[footnoteRef:8] Justice Michael Kirby, however, was adamant that; [7: Michael Kirby, ‘In Defence of Mab’, Australasian Legal Information Institute (PDF, 1994) p. 54 < http://www.austlii.edu.au/au/journals/JCULawRw/1994/3.pdf>] [8: Ibid, p. 61.]

“If the judges of the common law did not so act, the law would fail to adapt and change to modern society… Strict and complete legalism, giving effect to simple views concerning the separation of powers doctrine, has become entirely inappropriate to a modern common law system. This is especially the case where the system operates under a written constitution designed to endure indefinitely.”[footnoteRef:9] [9: Ibid, p. 68.]

Thus, to take Margaret Fordham’s view that a judge’s role in common law systems revolves around ‘molding and changing the law through case-by-case development’[footnoteRef:10], the High Court obeyed their duty in the Mabo decision. The judge’s involvement was essential to the evolvement of Australia’s common law. It is therefore clear how judges play a central role in common law, unlike the civil law system. [10: Margaret Fordham, ‘Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in Asia’, National University of Singapore (PDF, 2005) p. 3 ]

The Civil Law System

Civil law systems are some of the many legal systems in which judges do not play a central role. In civil law, written codes are formulated to comprehensively cover every area of law. Statutes contribute to the codes as principal sources of law and jurisprudence is far less significant.[footnoteRef:11] The codes are written ‘at a high level of abstraction, and are based on principals derived from the scientific study of legal data.’[footnoteRef:12] The codes, as well as the statutes, are ‘highly systematic’. This is particularly evident not only in the current Chinese system but throughout Chinese history. [11: Margaret Fordham, ‘Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in Asia’, National University of Singapore (PDF, 2005) p. 2 < https://law.nus.edu.sg/asli/2nd_asli_conf/pdf/margaret2005_01.pdf>] [12: Ibid.]

Throughout history, China developed codes of punishment to ensure all were equal before the law, and all principles of law were unchanging; inspired by the Legalist school.[footnoteRef:13] The Da Qing Lii Li and Da Qing Hui Dian are just two examples of codes from the Qing Dynasty to which this form of thinking was initially adopted. The former code consists of a list of 3987 punishable offenses, whilst the second delineates the functions, duties, and powers of departments of the constitution and administrative government.[footnoteRef:14] The codes were detailed and indisputable, acting as a guide during application. The present People’s Republic of China still utilizes similar codes, but due to having a developed law, the roles of judges in civil law are quite different to that of common law systems. [13: Poh-Ling Tan, Asian Legal Systems: Law, Society, and Pluralism in East Asia (Butterworths, 1997) p. 16.] [14: Ibid, p. 18.]

The responsibilities of judges in civil law greatly contrast that of common law. Margaret Fordham describes judges in civil law systems, in theory, as having ‘a purely interpretive role, within which doctrinal guidance leaves little room for individual discretion.’[footnoteRef:15] This is evident in the Constitution of the People’s Republic of China. Article 5 subsection 3 states that ‘No law or administrative or local rules and regulations shall contravene the Constitution,[footnoteRef:16] and by extension, the codes. This displays how rigid the civil law system is; judges do not have the same freedom as common law judges to evolve law when necessary. Angelo Dondi and Geoffrey C. Hazard Jr. argue, however, that this does not change the significance of the role of judges in civil law systems. [15: Margaret Fordham, ‘Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in Asia’, National University of Singapore (PDF, 2005) p. 2 < https://law.nus.edu.sg/asli/2nd_asli_conf/pdf/margaret2005_01.pdf>] [16: ‘China Constitution’, Servat.unibe.ch (Web Page, 14 March 2004) Article 5, s (3) < http://www.servat.unibe.ch/icl/ch__indx.html>]

Despite being ‘a purely interpretive role’,[footnoteRef:17] civil law judges are largely involved in the proceedings of the court. Traditionally ‘it was thought to be up to [the judge] to determine the matters in dispute, identify the necessary evidence, schedule the necessary intermediate and final hearings, and eventually formulate the judgment according to the law and the proof.’[footnoteRef:18] However, the level of involvement of a judge in court proceedings does not directly relate to the centrality of their role in their system. The law itself has already been developed through the codes – it is only through the application of the codes and an obligation to find answers that a judge is warranted. In common law systems, advocates generally take on this position – allowing judges to focus on the gaps between laws and create legal precedent. [17: Margaret Fordham, ‘Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in Asia’, National University of Singapore (PDF, 2005) p. 2 < https://law.nus.edu.sg/asli/2nd_asli_conf/pdf/margaret2005_01.pdf>] [18: Angelo Dondi and Geoffrey C. Hazard Jr., ‘Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits’, Yale Law School Legal Scholarship Repository (Web Page, January 2006) p. 60-61 < https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.ecosia.org/&httpsredir=1&article=3371&context=fss_papers>]

Concluding Thoughts

It is evident that the statement pertaining to the idea that ‘judges play the central role in all legal systems’ is incorrect. In common law systems, the role of a judge is central to the advancement of law. This centrality does not exist in civil law systems due to the laws having been finalized. The statement is therefore inaccurate; for the civil law legal system does not revolve around judges, thus the idea that the concept applies to ‘all legal systems’ is discredited.

Bibliography

Poh-Ling Tan, Asian Legal Systems: Law, Society and Pluralism in East Asia (Butterworths, 1997) p. 16-18.

Reference List

Commonwealth of Australia Constitution Act’, Parliament of Australia (Web Page, n.d.) Chapter 3, s (73) < https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution>
China Constitution’, Servat.unibe.ch (Web Page, 14 March 2004) Article 5, s (3) < http://www.servat.unibe.ch/icl/ch__indx.html>
Angelo Dondi and Geoffrey C. Hazard Jr., ‘Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits’, Yale Law School Legal Scholarship Repository (Web Page, January 2006) p. 60-61 < https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.ecosia.org/&httpsredir=1&article=3371&context=fss_papers>
Margaret Fordham, ‘Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in Asia’, National University of Singapore (PDF, 2005) p. 1-3 < https://law.nus.edu.sg/asli/2nd_asli_conf/pdf/margaret2005_01.pdf>
Michael Kirby, ‘In Defence of Mab’, Australasian Legal Information Institute (PDF, 1994) p. 54-68 < http://www.austlii.edu.au/au/journals/JCULawRw/1994/3.pdf>

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A Judge’s Role: Common Law Versus Civil Law Research Essay

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