Is it suitable to adopt the civil court's approach for the common law court in preference of justice?
To answer your question simply, it depends. Is the level of scrutiny the court exercises in the case or the standards for fault and conviction the same? For instance, in the American common law system there is clearly two branches, civil and criminal. On the civil side the standard for fault is essentially "more likely than not." Usually a single judge, but sometimes a jury, believe the defendant is reasonably the one at fault, but can also find the plaintiff had some responsibility. On the criminal side the standards are typically much higher. In criminal court the standard for conviction of guilt is "beyond a reasonable doubt." So, on the civil side some doubt is expected. On the criminal side it is intended to be very minute.
Lastly, what are the procedures like? On the civil side the standards for evidence and witness testimony are less stringent than on the criminal side. As a result of this due process and certain defendant rights are typically very distinct between the civil and criminal side.
Dear Razina,
I think the primary point of reference for the question is the Law establishing the court. That statute would prescribe the extent of the court's power. However, going by your question, I will answer in the positive. You know that common law courts are fusion of courts of law and equity. And the major aim of equity is to ensure substantial justice as against technical justice of common law. Therefore, if in a case, the court realises that a miscarriage of justice would be occasioned by following the common law approach, then it is the duty of the court to adopt other approaches that will bring about substantial justice. I believe this position is usually captured in the Acts establishing the courts.
Your question - if I may say so - is a bit unclear. Do you mean - as the responses assume -- the civil law (meaning the non-criminal law) being used in the criminal courts? E.g the issue of burden of proof. Or the civil law system features (i.e. not the common law but French and other systems that are categorised as "civil law systems") being used in common law courts? E.g. the less adversarial system.
It also depends what you had in mind when you use the word "justice"?
In the first sense the burden of proof in criminal cases is considered to be an important safeguard for justice.
In the second sense, whether there is better justice in the civil or the common law system (in criminal cases) is controversial. There is a good deal of literature comparing the two which should be easy enough to find.
Dear Jill,
Your answer is well appreciated. Being an alumnus of the questioner's faculty, I understand where she's coming from. And yes, she means the second option you mapped out, I.e., using the civil law system procedure in common law oriented courts.
However, it would be more appreciated if you could list some of the literature you referred to. That will help the researcher better. Thanks
To stimulate your thinking about this, I suggest judgments where common law and civil law are mobilized simultaneously. In Canada , I think especially at Prud'homme v. Prud'homme , [2002] 4 SCR 663 :
Thank you for your kind responses. I'm actually researching about the willingness of the judges (either from common law or civil law background) to depart from their traditions for sake of preserving justice, especially in deciding the cases.
It is easier to do this from the"common law side" - especially if you have acess to law reports that have proper indexes of cases relied upon. You can see from these whether cases from civil law jurisdictions have been relied upon. I am attaching a study from the US Library of Congress on the use of foreign cases in domestic courts.
In constitutional law boundaries between systems have broken down much more. And the impact of the European human rights system is also relevant especially to criminal cases.
Thank you Sir for your kind suggestion. The article is very interesting.
There are various other countries where some interpenetration of systems has taken place, such as Mauritius and Seychelles. And perhaps Roman Dutch jurisdictions such as Sri Lanka and South Africa. And there were some interesting aspects of the Sudan system - at least before Bashir. Assuming you are in reach of a good library you should be able to find material.
Thanks Jill and William. At first, I'm thinking to do mixed methods for this research. So far, it is quite difficult to get responses from members of judiciary (especially in Malaysia) since they are upholding the common law. Some of them think that it is quite absurd to adopt civil law approaches. As a member from the common public, I think if the civil law approaches are more better in preserving justice than why not to adopt it to common law system. That's what I think. Thank you for sharing your opinions.
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