common law - equity - adversary system

Common Law System

Definition: Incorporates judge-made law and legislation.
Development of Legal Principles: Evolves from individual cases rather than a coherent legal theory.
Procedural Style: Utilizes adversarial procedures, where the judge's role is less active compared to inquisitorial systems. The procedure often resembles a hybrid model.
Case Proceedings: Typically proceeds as one continuous hearing.
Emphasis on Rights: Prioritizes the rights of the accused in criminal matters.
Value of Particularity: Tailored to accommodate local community values and customs.
Doctrine of Precedent: Similar cases are resolved consistently, and lower courts must follow legal principles established by higher courts.

Historical Background: Evolved from the rediscovery of Roman law texts during the 11th century.
Codification of Law: Features a comprehensive legal code (e.g. Code Napoleon) that compiles laws as opposed to a system based on judgments.
Accessibility of Law: Citizens can easily access legal principles without needing to sift through various judgments, making the law more user-friendly.
Judicial Role: Judges operate in an inquisitorial capacity, gathering evidence, calling witnesses, and directing legal proceedings.
Function of Judges: They apply law without creating it; their role is primarily administrative.
Reasoning Approach: From general rules to specific cases.
Value Orientation: Aspires to deliver justice, focusing on the ideal notion of law rather than strictly resolving disputes.

Definition: Pertains to principles of fairness that modify the early common law system.
Historical Development: Originated from the King's Court of Advisers, which evolved to formal judicial functions to provide remedies for disputes.
Formalization of Complaints: Early grievances were documented as pleas, leading to the development of a rigid writ system under common law.
Limitations of Common Law: Rigid procedures limited avenues for justice, necessitating an alternative that the lord chancellor provided, focusing on fairness rather than strict forms.
Court Rivalry: Courts of equity and common law were separate entities until the Judicature Act of 1875 unified their administration.
Contemporary Use of Terms: "Common law" contrasts with civil law systems and denotes judge-made law in relation to equity principles.

Influence of Colonization: Shares common law roots with the UK due to colonization.
Historical Context: Judges appointed by the king traveled to settle disputes in a manner that differed from local customary courts.
Evolution of Remedies: Over time, judges created new remedies to address societal needs, developing incrementally without a coherent theoretical basis.
Judicial Reasoning: Judges use an inductive approach, leading from specific cases to general legal principles.

Common Law Nations: Found in Australia, England, the US, New Zealand, and India (former British colonies).
Civil Law Regions: Present in Western Europe, Latin America, and Indonesia (areas influenced by France, Portugal, and Spain).
Sharia Law: Based on the Quran, applies in certain jurisdictions.
Customary Law: Rooted in the customs and traditions of indigenous peoples.

Main Features:
- Party Control: Litigation management is largely the responsibility of the parties involved.
- Evidence Procedure: Each party presents witnesses, with opposing counsel performing cross-examinations to challenge credibility.
- Judicial Role: Judges act as referees rather than questioners.
- Hearing Structure: Emphasizes a continuous hearing.
- Compliance Enforcement: Only enforced at party request, rather than proactively by the court.
Inquisitorial System Contrast: Judges are more active and involved in evidence gathering in civil law countries.
Functionality Rationale: Promotes thorough fact presentation and issue clarification, leading to impartial verdicts.
Criticism: Disadvantages individuals lacking legal representation, knowledge, or funds; can result in prolonged and costly litigation.
Tribunals: Many utilize features of the inquisitorial system for a more informal process, allowing tribunal members to engage actively in proceedings.

Reviewed characteristics of the common law and civil law systems, explored the concept of equity, and analyzed features and justifications of the adversarial system.