Common law, equity and adversarial system

Common Law System

• Definition and Characteristics

  • Incorporates both judge-made law and legislation.

  • Developed through individual cases rather than a coherent theory of law.

  • Employs adversarial proceedings where judges play a less active role; often a hybrid of adversarial and inquisitorial methods.

  • Continuous hearing format for cases.

  • Strong emphasis on the rights of the accused in criminal matters, reflecting Commonwealth values and local customs.

  • Based on the doctrine of precedent: like cases decided alike, lower courts must follow legal principles set by higher courts.

Civil Law System

• Origins and Principles

  • Evolved from the rediscovery of Roman law texts in the 11th century.

  • Based on a codification of law (e.g., Code Napoléon), collecting laws into a single code.

  • Enhances accessibility for citizens compared to the complex common law system, making it easier to find relevant legal principles.

  • Judges have an inquisitorial role, gathering evidence, calling witnesses, and conducting proceedings.

  • Judges hold bureaucratic status, applying the law rather than making it, reasoning from general rules to individual cases.

  • Aspires to deliver justice rather than just resolving disputes, with hearings occurring at various stages.

Equity

• Definition and Historical Context

  • Represents principles of fairness that modify common law.

  • Originated from the King's Court of Advisors, leading to a formal judiciary system.

  • Developed from petitions (pleas) and a rigid common law system that limited remedies based on existing categories.

  • The Lord Chancellor offered alternative resolutions based on fairness, leading to discretion and moral considerations in decisions.

  • Courts of equity and common law were rivals; the Judicature Act of 1875 allowed for integration of both systems.

  • Common Law Terminology: Contrast common law with codified civil law; common law often refers to judge-made law under the doctrine of precedent versus equity principles.

Australian Legal System

• Foundation and Development

  • Similar to UK legal system, derives from the Norman Conquest in the 11th century.

  • Judges appointed by the king were sent out to standardize legal practices compared to local customary courts.

  • Focused initially on customary law, evolved to develop new remedies attractive over manorial practices.

  • Legal principles recorded in reports, creating a nationwide common legal framework.

  • System developed incrementally; lacks cohesive theoretical underpin but abstract principles emerged from academic writers.

Global Legal Systems

• Overview of Legal Systems Around the World

  • Common Law: Present in Australia, UK, US, New Zealand, and India (countries colonized by Britain).

  • Civil Law: Utilized in Western Europe, Latin America, and Indonesia (colonized by France, Portugal, and Spain).

  • Sharia Law: Based on Islamic principles in the Quran.

  • Customary Law: Rooted in traditions of indigenous peoples.

Adversarial System

• Main Features

  • Parties conduct litigation primarily themselves, both pre-trial and during the trial.

  • Evidence elicitation occurs through witness calling and cross-examination by adversarial parties, aiming to challenge testimony.

  • Judges act as umpires, presiding over cases rather than actively engaging in evidence gathering.

  • Judicial function focuses on maintaining a continuous hearing format.

  • Compliance with court rules typically enforced at the request of one party.

• Comparison with Inquisitorial System

  • Inquisitorial judges play a more active role, inquiring about the truth and conducting hearings at multiple stages.

  • Procedures tend to be more informal, diminishing the critical role of lawyers.

• Rationale and Criticism of the Adversarial System

  • The assumption that each party presents all relevant facts leads to an impartial verdict.

  • Critiques include potential inequality among parties, making it disadvantageous for marginalized groups (e.g., migrants, indigenous people).

  • Can result in lengthy and costly legal disputes.

  • Tribunals often blend adversarial and inquisitorial features, maintaining informality and active participation of tribunal members in proceedings.