The Continental and Common Law Judicial Systems

THE CONTINENTAL AND COMMON LAW

Common law is a collective name for legal systems that are primarily based on judicial precedents. What this means is that common law courts will look for previous precedential judgements and base their verdicts on them if there is a disagreement betwen the parties as to which law is applicable to their dispute.

Unlike common law, the continental (or romano-germanic) legal system places the main emphasis on a set of core principles that are codified into a single referrable system serving as the primary source of law.

The European Continental and Common Law legal systems (or families of law) are most widespread in the world. Moreover, countries with a noticeable Catholic orientation are included in the European Continental (Roman-German) legal family, while Protestant countries are in the Common Law. This is a historically deeply-rooted division. Today, in none of the countries where the significant influence of the Christian church has been preserved, Christian canonical law is no longer used as the basis of the state legal system.

Despite the obvious differences in the legal systems of Western European and Eastern European states, they are united by many similar features that allow them to be included in a single European continental legal family that is subdivided into four main legal groups - German, Roman, Slavic, and Nordic law. 

The Continental Law family is distinguished by a special attitude towards the law. It appears in the form of a certain abstract pattern of behavior, which serves for the judge as the sole criterion for assessing the behavior of a particular individual. A different approach demonstrates the Common Law model of the legal system. Here the judge assesses the actions of the defendant, analyzing his compliance with the requirements of laws and other regulatory acts, and makes a decision, guided by his own knowledge of the laws and the concept of law. The court decision, when approved, becomes mandatory in the subsequent consideration of similar cases. This creates a principle with the binding force of law.   

Another noticeable difference of the European Continental system from the Common Law is the order of judicial proceedings. European system relies on a long pretrial investigation, during which the bulk of evidence is collected, and directly involves the judge in the preliminary study of the case materials. This practice is characterized by harsh preventive measures: pre-trial detention and arrest of suspects, their long stay in remand prisons, etc.

On the contrary, in the system of Common Law, the judge basically performs the functions of an arbitrator, observing the competition of the parties, whose lawyers independently submit facts to the court. It is the lawyers who become, in essence, the most prominent figures during the preparation for and during the trial. They present the evidence to the court, determine the order of witness appearances, obtain testimonies of other party witnesses, interrogate the witnesses, etc. In civil matters, lawyers are entitled to conduct their own pre-trial investigations. Due to their efforts, the pre-trial stage usually ends with reconciliation of the parties (approximately 90 percent of cases). If the case goes to trial, the judge makes a decision after examining all the case materials submitted by the parties.

With all the differences between the Continental and Common Law families of law, there has been a certain convergence between them in recent decades. Thus, in the United States, case law, although it continues to be the basis of the legal system has been gradually replaced by the decisions of federal and state legislatures and statutory law. Due to the dramatically increased burden on the trial courts, American judges forced to define their role, including at an early stage of the proceedings, supervising cases and strongly encouraging pre-trial resolution of disputes, including the so-called “plea bargaining”. 

At the same time, a tendency towards customization of the mechanisms of legal regulation of each state has become apparent, since the law of any country is not a simple set of norms, but a complex system.

In most countries, the main constitutional provisions governing the organization of the judiciary are particularly concise. They do not detail the structure of the general judicial system, and sometimes this issue is generally omitted, like, for example, the French Constitution, which does not have articles on higher courts - the Court of Cassation and the Council of State (for the administrative justice system). Such laconicism is not accidental. It leaves a certain leeway when reforming the judicial system. At the same time, numerous constitutional laws defining the hierarchical structure of the judicial system are very conservative.

Trial attorneys at IQ Decision UK clearly understand that for a judicial work a lawyer needs constant self-improvement not only in legal matters, but also in the practice of handling a dispute. The experience of our specialists from IQ Decision UK in legal representation at international judicial institutions allows us not only to keep up with judicial international practice, but also to actively participate in its procedural formation and development.

Practically all countries in the world have adopted a three-tier structure for judicial systems.

The trial courts are significantly differentiated depending on the degree of complexity and classes of cases.

The second level of judicial systems is occupied by the appellate courts, which are called so almost everywhere. They combine their main function, which is to consider complaints against decisions of trial courts, with organizational and control activities. 

At the third level of the judicial hierarchy are the supreme courts. They have the status of the highest court, which is reflected in the constitutions of many countries. Some supreme courts are vested with the right of constitutional amendment.

In addition to courts of general jurisdiction, in many countries a network of specialized courts operates within a single judicial system. These include constitutional, family, juvenile, tax, environmental and some other courts that allow for a more thorough legal study of specific cases involving various legal specialists. The Constitutional Court stands out as the high court that primarily deals with the issues that conflict with constitutionally recognized freedoms, rules, and rights. Now it exists in two basic forms - American and European (or Austrian).

The American model provides for constitutional control by the courts of general jurisdiction. Two options are possible here: either each court is vested with the right of such control, or only the Supreme Court. Such an institution is common in the United States and in Canada, most of the countries of Latin America, in Japan, India, Australia, Switzerland, and Scandinavian countries.

The European or Austrian model involves the creation of a special court exercising constitutional control. Such courts operate in Austria, Belgium, Spain, Italy, Portugal, the Russian Federation, France, Germany and other countries.

The competence of the constitutional control is to ensure constitutional legality.

The activities of constitutional review bodies usually have two stages - preliminary and final. The preliminary stage provides for the study of regulations at various stages of their legislative development.

In its final stage, control over already adopted legislative acts may be:

• Abstract, irrespective of the specific situations in which the law is applied, and
• Specific, when considering a particular case in court.

In almost all countries, a court’s decision on the non-constitutionality of a legal act entails suspension of the case review until the decision of the constitutional court. The powers of the constitutional courts are generally very broad. They have the right to repeal the current law, to prevent the entry of the law into force, to approve a procedure restricting the possible future actions of the legislative authorities (despite the fact that the constitutional court cannot stand over parliament and dictate anything to it).

A prominent place in the modern judicial proceedings of Western countries belongs to the administrative justice that adjoins the general judicial system. Its purpose is to resolve disputes arising between citizens (or associations of citizens) and government authorities. Since the tendency to the growth of the bureaucracy and the strengthening of its authority is clearly visible everywhere, the activity of administrative justice is becoming increasingly important.

There are two models of administrative justice - Continental and Common Law.

The first is characterized by the autonomy of judicial jurisdiction and to a large extent possesses the features of specialized courts. 

The trial in the administrative court is not much different from the scheme adopted in the courts of general jurisdiction. However, by virtue of its specialization, the administrative court allows to consider matters assigned to its competence more professionally and thoroughly. In addition, he has no departmental interests and can act as an independent arbitrator.

The second, Common Law model relies on the so-called “administrative tribunals”, quasi-judicial authorities. In the UK, there are about 2,000 of administrative tribunals, but many of them are departmental commissions. The rest are formed pursuant to the acts of the government or a separate ministry. The activities of the tribunals are regulated by a special law of 1971. Highly specialized, not constrained by formal rules, they are able to deal with disputes relatively quickly. 

The value of quasi-judicial bodies in the United States is just as great. There exist the U.S. Court of Federal Claims and the U.S. Tax Court, which are considered quasi-judicial authorities, but in fact, in terms of autonomy and style of activity, they are similar to administrative courts. 

In contrast to the courts of the Common Law legal system, administrative tribunals are actively involved in gathering evidence, they can conduct investigative actions on their own initiative, they are not obliged to be strictly guided by case law, make decisions collectively; their meetings are mostly closed. Tribunals occupy an intermediate position between the executive and judicial branches of government. 

Judicial lawyers from IQ Decision UK have the necessary theoretical and practical legal training. In addition, our trial attorneys who are engaged in representation and provision of legal assistance in the courts have extensive experience in solving complex problems, while using various methods and approaches to protect the rights and interests of clients in judicial institutions. 

In the United States, authority between the center and the states is divided in favor of the latter that possess considerable autonomy and independence. The states created their own judicial systems. State courts go through most of the cases that are beyond the jurisdiction of the federal courts. However, duality, a characteristic feature of the American judicial system, is manifested in what leaves every citizen the right to choose between a state court and a federal court.

The principle of accessibility of justice (accessibility of judicial protection) means the possibility provided by law for unhindered access to the court for the protection of violated rights.

In the UK, filing a claim requires payment of a fee, ranging from £35 pounds to £10,000 pounds. However, it should be noted that in English courts, in addition to paying the filing fee, the filing of separate procedural documents during court proceedings is also subject to fees.

So, for consideration of the appeal in the District Court it is necessary to pay a fee of £140 pounds, and in the Supreme Court - £240 pounds.

As for France, before January 1, 2014, in order to take legal action it was necessary to purchase a stamp, which cost 35 euros. However, now the legal recourse has become free. The average cost of filing a complaint to resolve commercial disputes varies in different regions of France and averages 70-90 euros for both parties. 

In the United States, the price of a claim varies depending on the state. So, in some states the filing of the claim itself is free, and in some the filing fee is charged. It also depends on the amount of claims, the type of case, the category of the court and other factors, but on average, the minimum amount is $250-300. It is also necessary to add the services of a lawyer, which range from $50 to several thousand dollars an hour, as well as payment for expert examinations and expert testimony. Hence, the price tag can range from a few hundred dollars to several thousand, depending on the nature of the case. 

Lawyers from IQ Decision UK provide a wide range of legal services to individuals and organizations of any legal form on favorable terms. The priority direction of our work is the protection of rights and representation of clients in judicial authorities. Responsible, individual approach to each business and high professionalism are the basic principles of our work.

Categories of disputes resolved by lawyers from IQ Decision UK through Arbitration and Mediation:

• Tax disputes
• Commercial disputes
• Corporate disputes
• Land dispute
• Administrative Disputes